Rush v. Thos. D. Murphy Co.

• Decision Date: 03 July 1907
• Citation: Rush v. Thos. D. Murphy Co., 135 Iowa 376, 112 N.W. 814 (Iowa 1907)
• Parties: RUSH v. THOS. D. MURPHY CO.
• Court: Iowa Supreme Court

135 Iowa 376

112 N.W. 814

RUSH

v.THOS. D. MURPHY CO.

Supreme Court of Iowa.

July 3, 1907.

Appeal from District Court, Montgomery County; O. D. Wheeler, Judge.

Action for damages resulted in a directed verdict for defendant on which judgment was entered.The plaintiff appeals.Affirmed.P. W. Richards, for appellant.

J. M. Junkin and Ralph Pringle, for appellee.

LADD, J.

This appeal involves an inquiry into the sufficiency of the evidence to support a verdict had the issues been submitted to the jury.The plaintiff had been employed by defendant as a laborer to unbox and deliver paper to any part of its building, operate the cutout machine, and the like for about three weeks.In distributing material, he made use of a freight elevator extending from the basement to the third or top story of the building.The shaft of this was inclosed on three sides, with the other side open.From 4 or 5 feet south to 45 feet north of this shaft there was a deck 6 1/2 or 7 feet above the first floor; the ceiling being about 13 or 14 feet high.At the opening from this deck, as well as at each floor, there was a gate about 30 inches high made of 2-inch studding, 6 feet long, with pickets 2 or 3 inches apart connecting them.These gates were hung on cords over pulleys with weights so that when raised or lowered they stopped where left.The platform of the elevator was 6 feet square without barriers, and below the first floor there was not enough light to enable one to distinguish the outlines of objects.The plaintiff had made use of the elevator in going to and from the basement (it furnished the only access thereto) nearly every day several times since beginning work and on June 1, 1904, was directed by the foreman to take a roll of paper down there.He did so, and, when returning, stood in the center of the platform, and as it rose reached out his left hand under the gate which rose with the elevator.As it struck, the gate let down from the deck and in the same groove, plaintiff lost his balance, dropped his right hand on the platform, and his left foot slid over the edge of the elevator and was caught between the platform and a joist which came within 1 1/2 to 2 inches of the opening.The boy on the elevator did nothing to stop it, and the foot was seriously injured.Plaintiff testified that he knew nothing of this joist, or that the upper gate was down, or that both gates worked in the same groove.He had opened the gate many times before in the same way, and had seen others do so, without encountering obstacles, but had let the deck gate down at other times, and therefore must have known it might be there.It was the common practice to raise the gate as plaintiff did, and when the deck gate was down both were lifted.It will be observed that no affirmative evidence that the elevator was defective in any respect was introduced.

Notwithstanding this omission, appellant insists, first, that the joist on which the floor was laid ought not to have extended to 1 1/2 to 2 inches from...