Reid v. Automatic Elec. Washer Co., 33376.

• Decision Date: 04 October 1920
• Docket Number: No. 33376.,33376.
• Parties: REID ET AL. v. AUTOMATIC ELECTRIC WASHER CO., INC., ET AL.
• Court: Iowa Supreme Court

189 Iowa 964

179 N.W. 323

REID ET AL.

v.AUTOMATIC ELECTRIC WASHER CO., INC., ET AL.

No. 33376.

Supreme Court of Iowa.

Oct. 4, 1920.

Appeal from Jasper District Court, Jasper County; Chas. A. Dewey, Judge.

This is a proceeding under the Iowa Workmen's Compensation Statute (Acts 37th Gen. Assem. c. 270), by dependents, to recover for the death of a workman from an injury alleged to have arisen out of and in the course of his employment by defendants. The claim was disallowed by the arbitration committee, before which the evidence was taken. The evidence was all certified, and was properly before the commissioner, the district court, and is before us. On review before the industrial commissioner, the conclusion of the arbitration committee was sustained. From this ruling, on appeal to the district court, there was a finding for defendants, confirming the decision of the commissioner, and the claimants' appeal was dismissed on the merits, and judgment rendered against them for costs. The claimants, plaintiffs, appeal. Reversed and remanded.O. P. Meyers, of Newton, for appellants.

Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellees.

PRESTON, J.

No question is made but that claimants were dependents, and the committee found that deceased, George M. Reid, was contributing $20 per month to their support. Deceased, an unmarried man, and claimants, constituted one family. Two of claimants are his parents. Deceased was in the employ of defendant washer company, and was one of its foremen. The factory was a block long east and west, with various partitions--an exit at the west, and another to the east, through the office. The west part of it was two stories high, and the east part four stories. Deceased worked in the south-west corner of the second floor of the four-story part, with windows near him. He was injured May 21, 1918, and died a few hours afterwards. He was injured by débris from the higher part of the building crashing through to where deceased was, caused by a windstorm about 5 o'clock in the afternoon of that date. The factory was partly destroyed. The regular quitting hour was 6 p. m. There are stairs from one floor to another. The president of defendant factory testifies:

“Foremen were all instructed, especially when weather was threatening, to see that all windows within their jurisdiction were closed when they quit work. At the time of his death, Reid was foreman in his department. His duties as foreman, as regards closing windows when the gong rang, were the same as foreman in all departments, that upon leaving work for the day all windows of that particular department must be closed. We sound a gong at regular hours for commencing and closing work, electric factory horns and signals, operated automatically, by a master clock, and for an emergency, and dismissing men at odd hours. We have an extension of this system into the office, in the nature of a push button. Pressure on this push button blows the horns. On this particular day, after watching the storm approach some five minutes--it was probably going to be severe--I concluded that the men should be dismissed from the building, which was done by pushing this button and sounding the alarm all over the building. I operated the horn when the accident occurred, in a series of short, quick blasts, intended as a danger signal, that something was wrong. I wished the men to leave their places of work and hunt places of safety. It was not like the sound at regular quitting hour, when there was no unusual occurrence. He (deceased) also did some work in the northwest corner of the same room and floor, and he would naturally be obliged to close, or see that all windows in his jurisdiction were closed, which would include both southwest and northwest corners. The instructions were to close the windows, because we didn't know how serious a storm was coming up. I tried to arouse the men and women, and get them out quick. They had not been instructed as to any particular whistle that indicated to them that they must leave the building; the crushing in of south wall caused his death. It was all over in a short time after the gong sounded.”

Some of the witnesses refer to the sounding of the gong or horn as a whistle--that it takes the place of a whistle. This sounding of gong can mean only one of two things, either the commencing or stopping of work. The foremen in every other department did close their windows at this time, as testified by the president. The president testified further:

“In watching the storm, it was five minutes before I thought there was any danger, or was much scared.”

A witness testified:

“He censured himself because he had not blowed it sooner.”

It is shown that the usual way for the men to leave the factory, when quitting, was in the west part of the factory, through a stairway in the west room of the entire factory, a room beginning some 50 feet west of the four-story part; that the men went west to that room and stairway to get out when the gong was sounded; all went west. The four-story part of the building was swept off and went over and fell and crashed on second story part, and down through. A witness testifies that as he went west to get out, he met some man going east, near west room of factory. Would not swear it was deceased; were all in a hurry. The father of deceased, who had worked in the factory a few days before the date in question, testifies:

“I was working on the third floor of the defendant's factory. A workman said to me, ‘There is an awful looking cloud out there.’ I opened a window and looked out, and thought the cloud was high, and would go over us, closed the window, and started back to work, when the gong sounded a warning of closing. The rest started to leave the room and passed me. I looked out the south window and began to see boards and other débris flying in the air. I landed on the second floor and had to go past the bench where George worked, but he wasn't there. Just as I approached the stairs leading to the first floor I met him coming back on the run. Where I met him was west of the part that was crushed in. I passed him, I would say, 30 feet--I had got beyond where the crash came. When it came, I stopped, knowing it useless to go farther. The instant I stopped, I commenced calling, and started back, realizing he might be caught in that crash. I saw the limbs of a man, projecting from under the débris; the rest of the body was covered. I commenced uncovering, and saw it was my son. I was working in east part on third floor. When I heard the gong, I went to stair leading from the third to second floor, and then went west, on the second floor, right past the bench where my son, George, worked, and kept on going west; and met him right near and little this side of the stairs leading from the second floor to the first; in west part of factory. This was approximately about 60 feet west of bench where he worked; he was then going east, and I was going west to get out. I was on the run--was walking fast. I met nobody else. Several others were just ahead of me, but all were going west, toward the exit. The gong is used the same as a whistle in a factory. It was a violent storm. Would have been extremely bad if it had been closer to the ground. Several factories and residences were damaged. My son was the only one killed, and Mr. Newquist was the only one severely injured, as I recollect. Defendant's factory was damaged the greatest.”

This witness testified further on cross-examination by defendants, and without objection, as follows:

“Mr. Newquist was injured the same time as my son. His position in factory was timekeeper.

Q. Do you know what he (Newquist) was doing at the time of the accident? A. Yes.

Q. State what he was doing. A. He was going over from his office to the factory, and he started to leave (help) my son to close some of the windows, and the crash came and caught both of them.”

On redirect examination of witness by claimants, this appears:

“Q. You were asked in regard to where Mr. Newquist was at the time of this storm, and what he was doing, and so on. Can you state more in detail about Newquist, as to what he had done, or said to your son and what your son was doing? A. This I can state from the statement I have from him.

Q. I would not refer to that. State a little more in detail. You spoke of him a while ago. A. Newquist told me he was in the act of--

Mr. Parmenter (for defendants): We object to the statement of what he was told, as hearsay evidence as to what Newquist said. He, perhaps, will be available as a witness.

Mr. Meyers (for claimants): You went into it.

Court: Objection overruled.

Mr. Parmenter: Ruling of court objected to.

A. (continued). Mr. Newquist said that George was in the act of closing the windows, and he started to help him when the crash came, and that was the last that he knew. He was unconscious.”

On examination by the chairman of the committee, witness testified further, without objection:

“Mr. Newquist was employed in defendant's factory as timekeeper; he was going back through the factory, and saw George in the act of closing the windows; he was injured pretty badly; think his nose was broken; did not think he would recover for some hours.

Redirect examination (by claimants):

“Mr. Newquist is now at Camp Pike. He was drafted in the military service. I wrote him in regard to this matter, and he sent me this affidavit. [Affidavit is marked “Exhibit B.”] This is statement I referred to before. My son belonged to Sunday school.”

Exhibit B, the affidavit just referred to, was offered in evidence and the following objection and record appears:

“Mr. Parmenter: Defendants object thereto because it is not the best testimony; that it purports to be an affidavit of a witness for whom the law has provided a way that he can be reached. It would be decidedly unfair to this defense not to give them an opportunity to cross-examine.

Chairman: Why...