Parkhill v. Bekin's Van & Storage Co.

Decision Date16 March 1915
Docket NumberNo. 30155.,30155.
Citation151 N.W. 506,169 Iowa 455
PartiesPARKHILL v. BEKIN'S VAN & STORAGE CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Woodbury County; David Mould, Judge.

Action at law to recover damages for personal injuries received by plaintiff while in defendant's employ due to the fact that defendant furnished plaintiff a defective truck with which to work. Defendant denied the negligence charged, pleaded assumption of risk and contributory negligence, and also the statute of limitations. Upon the issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Affirmed.Sargent, Strong & Struble, of Sioux City, for appellant.

Geo. W. Kephart, P. H. Konzen, and F. E. Gill, all of Sioux City, for appellee.

DEEMER, C. J.

The first question which we shall determine arises upon defendant's answer; pleading the statute of limitations. An original notice was placed in the hands of one Montgomery, who served the same upon the defendant on November 24, 1913. In this notice it was stated that a petition would be on file on or before December 26th of the same year, claiming damages by reasons of an injury received by plaintiff during the month of June, 1912, due to the defendant's negligence. The notice also stated: “For further particulars, see petition which will be placed on file.”

[1] The defendant was notified to appear at the next January term of court commencing on the 5th day of January of the same year. A petition was filed on December 26, 1913, and therein plaintiff charged that his injuries were received on December 15, 1911. On January 5, 1914, defendant appeared, and on the 12th day of the same year it filed an answer. On the 18th day of February of the same year, it filed an amendment to its answer, pleading the statute of limitations. Such actions as this are barred by statute when not commenced within two years from the time the cause thereof accrued. Code, § 3447, p. 3. The petition, which must govern, states that the cause of action accrued on December 15, 1911, so that it must have been commenced on or before December 15th of the year 1913. The petition was not filed, and defendant did not appear until after the statute had run; but the original notice was served on November 24th of that year, and this was in time. Ordinarily, in this state, an action is commenced by the service of an original notice. Code, § 3514.

[2] Defendant insists, however, that the notice served in this case was of another cause of action, to wit, one occurring in June of the year 1912, and that this was not the commencement of the present action. The proposition is plausible, but not tenable. True, the original notice stated that the injury occurred in June of the year 1912, but this was not a material part of the notice; and, in the instant case, the defendant's attention was not only called to petition itself, which was to be forthcoming, but it responded thereto, and entered a voluntary appearance to the action. If the notice was not of this action, then it has no place in the record; and as the date of the accident need not be stated in the notice, or, if stated, need not be proved, a mistake therein, which does not in any way mislead, is to be disregarded. Plaintiff has at no time claimed that he had two causes of action, and the only one he presented was the one stated in his petition. Manifestly, he was mistaken in fixing the date in his original notice, but this was corrected in the petition, if it needed correction, and no possible prejudice resulted to the defendant. There is no merit in defendant's plea, and the court properly disregarded it.

I. Plaintiff was in defendant's employ as a common laborer, whose duties were to check goods as they came into, and went out of, defendant's storage house; to assist in putting them away for storage; and to take them from one floor to another by the use of an elevator. He received his orders from S. P. Bekin, defendant's manager, and was supplied with trucks for the purpose of moving goods. He had been at work some four years before the accident occurred, but testified that never before had he moved pianos until the time the accident occurred. He was directed on the day in question to move a player piano which was incased in a box from the floor where it then was, to the upper one, and he asked the manager what truck to use and was directed by him, to get the long one, for the reason that it could be more easily balanced on that one. We here quote from the record as follows:

“I said, ‘Do you think it is safe to carry that extra heavy piano?’ He got on his knee and looked at it, and said, ‘Yes.’ I said, ‘Do you see the weld on it?’ and he said, ‘Yes.’ I said, ‘Do you think it is safe?’ and he said, ‘Yes.’ I thought it was all right, and I used it. This truck was in the storage house when I went there. At that time it was broken, and out of commission. He had on wooden crosspieces, and this bit welded. The bit is the front iron. The bit sticks up in front of the handle, and it has two wheels below. This bit stands on two irons, one piece of iron under it, and this piece was broke. There were five trucks in use there all together. This was the largest one of the five. Two of those trucks were about three feet long. You couldn't use them even on a big box. There were two a little longer and one was extra long, probably six inches longer than the other two. That was the one I used on this occasion. The next largest truck had a broken leg and couldn't be used. It was my custom, under the order of the foreman there, to move heavy articles of this kind around the storage room on trucks. Q. Now, Mr. Bekin directed you to use this truck, and you say that he got down on his knee and examined it? A. Yes, sir. Q. And what did he say? A. He said the truck was all right, to go ahead and take it up. Q. And he ordered you to go ahead? A. Yes, sir. After Mr. Bekin examined the truck, he said: ‘That is all right; go ahead and take it up there.’ I had no means of knowing how much weight this truck would carry. I never moved an article as heavy as this piano on this truck. We put the bit under one end of the piano and bore down on the handle. That brings the piano up four or five inches off the floor. One man gets straddle of the truck and holds it, while the other gets it further underneath until we get the piano balanced. I had the handles of the truck. After I got the piano on the truck, I set it three or four inches back of the handles. The purpose in moving it that far back is to get it to balance on the bit. After we got the piano on, I started to move it; just started to swing around. I had my shoulder on the end, and my head on the back side of it, and pushing; and, as I tried to swing it, the bit broke and it came onto my shoulder, and I felt something give-in in my rectum. In the meantime I told Johnson to let down quick, ‘I am hurt,’ and Johnson grabbed it and got it up so that I could raise my hands and let loose, and then I sat down on some barrels, and I didn't know anything for some time after that. I became unconscious. I was pushing this piano ahead of me. I had to turn it to get it out of the alleyway. I was turning to the left. I was stooped over, with my hands near the floor and my legs about 6 or 10 inches apart, and my hands were within 10 inches of the floor. There was not a great deal of weight on the handles because the piano was balanced. I had my head and shoulders against the corner of the piano because you do your pushing with your shoulders and you have to have your head on one side to see where you are going. Mr. Johnson was at the other end of the piano. He had one hand against it to steady it. The floor there was pretty holely. The bit of the truck broke. The piano tipped toward the back, and that is the corner at which I had my head and shoulders. The weight of the piano came against me with a sudden chug. When the weight of the piano came against me, I felt something snap in my rectum. I examined the truck afterwards to see where it was broken. It was broken where this weld was, that Mr. Bekin had examined. I should judge that the weld was 2 1/2 or 3 inches long, and this bit was welded about halfway through. The other iron came together, but was not welded, just about half had been stuck; about half had not been welded together. There was a crack left there at that weld. A little piece of it happened to stick. I could see where the new iron stuck, and the other was rusted and black. When Mr. Bekin examined the truck, he said, ‘There is a weld there, but it is good and solid.’ After the piano fell over on me, I raised my hand and told Mr. Johnson that I was hurt, and to let it down quick. He grabbed it and held it, and I raised my hands and got it off. I sat down on some soda barrels then and became unconscious. I do not know how long I remained unconscious. Frequently my helper and myself handled pianos and moved them from one place to the other in the storage house as they came in, and have moved them and placed them on the elevator and up on the other floors. That was true during all the time while I was there in moving pianos and things of heavy character that we could not roll by hand. We had not moved a piano player in a box such as this before on a truck. This piano player is just the same as a piano with an attachment inside that operates the piano, but it is much heavier; it has the same appearance. I had noticed something the matter with this truck; that is, I had noticed the weld in the bit. This bit is a sort of an iron turned up. It is a kind of an iron out from the end of the beam. When I picked this out, I saw where it had been welded. I did not see any crack. I always asked him about heavy weights. I have always asked about heavy weights, whether it would hold or not at different times. I could not see whether anything was the matter with the weld or not; it...

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