Seefried v. Wangler Bros. Co.
| Decision Date | 27 October 1917 |
| Docket Number | 31115 |
| Citation | 164 N.W. 739,181 Iowa 504 |
| Parties | ANTON SEEFRIED, Administrator, Appellant, v. WANGLER BROTHERS COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Black Hawk District Court.--GEORGE W. DUNHAM, Judge.
ACTION to recover for personal injuries. Opinion states the facts. The court below directed a verdict for the defendant. Plaintiff appeals.
Affirmed.
J. C Murtagh and Mears & Lovejoy, for appellant.
E. H McCoy and Sager, Sweet & Edwards, for appellee.
Plaintiff is the administrator of the estate of one William Schneiderman, and brings this action to recover damages on account of his death. It is claimed that his death was due to the negligence of the defendant. Schneiderman was killed on the 1st day of December, 1913. His death was due to the explosion of a certain chemical compound while he was in the employ of the defendant.
Defendant was conducting a drug store in the city of Waterloo. The explosion occurred back of what is known as the prescription case, a place set apart for the filling of prescriptions and the compounding of medicines and other drugs. The interior of the store, at the time of the happening of the accident complained of, is as shown by the following plat:
[SEE PLAT IN ORIGINAL]
The prescription counter shown in the plat was shut off from the rest of the store by a glass screen enclosing it on three sides, and about four feet high. This screen extended along the entire front of the prescription counter and on both ends. One could, however, pass behind the prescription case from any point back of the show cases. Access might also be had from the center of the store by passing around the rear end and turning to the right. The store was about 120 feet deep from the front windows to the rear.
Plaintiff's intestate was employed to work at the soda fountain. It appears, however, that he worked in other parts of the store as occasion required, but never behind the prescription counter. The record discloses that a few times he left his place behind the soda fountain and waited on customers at the cigar case, sold small packages, and sometimes placed drugs and medicines upon the shelves, and also swept the floor and dusted the counters. There is no affirmative evidence that this was in the line of his employment, but he was seen to do these things. He was really employed to serve at the soda fountain, and that was where his main duties were performed. Just before the fatal accident, he was so engaged, and was seen at the ice cream compartment. It appear that he commenced work about six weeks prior to the happening of the injury complained of. At the time he was hired, he was told to work at the soda fountain, and he continued to work there up to the time of his injury.
There is practically no dispute in the evidence. The facts are as follows: On the day of the accident, an order was received by one John Roberts, a registered pharmacist in the employ of the defendant, for some colored fire. The duties imposed upon Roberts, by his employment, consisted of putting up drugs and compounding prescriptions. The ingredients necessary to make this colored fire were shellac, sulphur, and chloride of potash--one ounce of shellac, two ounces of sulphur, and six ounces of potash. Upon receipt of this order, Roberts proceeded to compound the mixture. He weighed out the different ingredients according to what seems to be a recognized formula, and placed them in a mortar. After he had them put together in the mortar, he placed the pestle on the right-hand side of the mortar, and went up a ladder, a few feet back of the prescription case, to get some other chemicals needed in the formula. "L" in the plat represents where the ladder stood. "M" represents where the mortar stood at that time. The explosion occurred while he was on the ladder. As a result of the explosion, he was injured and Schneiderman was killed. When he went up the ladder, there was no one in sight. The mortar and pestle were as indicated. The pestle was from 12 to 14 inches on the right side of the mortar. It was approximately from one to two minutes from the time he turned from the prescription case and went up the ladder until the explosion occurred. While on the ladder, he was from four to six feet from the mixture. The mortar, with the ingredients, was standing free and clear on the table. Around the prescription case and on shelves were bottles and packages containing drugs and medicines in what are termed pigeon holes. While on the ladder, he heard the deceased speak, and say, "I am going to stir it." Roberts said, "Bill, don't stir it." He turned, but before he had time to see deceased, the explosion occurred. He says the explosion occurred almost instantaneously upon his saying, "Don't stir it."
These facts are undisputed. Upon these facts the plaintiff predicates his right to recover, and says: That the defendant was negligent in that it failed to furnish Schneiderman a reasonably safe place in which to work; that the place became, and was, unsafe because used for the compounding and mixing of highly explosive and dangerous compounds; that the ingredients of said compounds were of a "highly inflammable and easily explosive character" when brought in contact by mixing in one receptacle, all of which was well known to the defendant; that the contact of said ingredients rendered them highly explosive and dangerous; that the mixing of said compound in the store rendered the place highly unsafe and dangerous, and defendant thereby carelessly and unlawfully created and maintained a public, dangerous and deadly nuisance upon its premises, and thereby negligently exposed Schneiderman to great danger and peril; that the defendant, after mixing the said ingredients, negligently allowed the compound to remain in the store unguarded and uncared for, and at a place where the deceased was accustomed to go in the performance of his duty,--a place of easy access,--and without giving any warning to the decedent of the dangerous or explosive character of the compound; that Schneiderman was free from any negligence on his part.
We take it that plaintiff's action rests upon two charges of negligence: (1) That the place in which deceased was required to work was unsafe by reason of the use to which it was put; that the using of the place in which the deceased was required to work for the compounding of explosives was a breach of the duty which the defendant owed to the deceased, and, injury resulting therefrom, such breach of duty was actionable; (2) that, conceding that the place was not rendered dangerous by reason of the use to which it was put, yet, when defendant undertook to compound this dangerous explosive on the premises, it became its duty to exercise great care to protect those in the building from injury from its presence, and that it failed in this duty, and negligently left the compound unguarded and uncared for at a place where the deceased was accustomed to go in the performance of his duty.
At the conclusion of all the evidence, the court instructed the jury to return a verdict for the defendant. The jury returned a verdict for the defendant, and upon the verdict so returned, the court entered judgment for the defendant, dismissing plaintiff's petition. From this, plaintiff appeals.
The only error assigned is that the court erred in sustaining defendant's motion for a directed verdict, and in entering judgment against the plaintiff for costs.
The first point relied upon for reversal is that it was the duty of the defendant to furnish deceased a reasonably safe place to work, and that it failed to do this, and that this failure was the proximate cause of the injury. That this duty rested upon the defendant cannot be disputed. The general rule so often stated is that it is the duty of the master to exercise reasonable care to see that his employees have a reasonably safe place assigned them in which to discharge the duties imposed upon them by their employment, and when it is made to appear that a failure to discharge this duty was the proximate cause of an injury, the master is liable. The question here is, Did defendant exercise reasonable care in attempting to discharge this legal duty, and did it furnish the deceased a reasonably safe place in which to work, or did it fail in the discharge of this duty to the deceased? Is there any basis in the evidence, any theory of the evidence, upon which a jury, acting within the scope of its duties, could, under the law, say that the defendant failed in this respect in the full discharge of its legal duty to the deceased, before and at the time of the injury?
This resolved itself into a law question. The facts are not in dispute.
The defendant was running an ordinary drug store, with all the incidents which attach to modern drug stores, [181 Iowa 512] --ice cream, soda fountain, cigars, perfumes, patent medicines, and such other articles as are found in all well regulated drug stores. The compounding of medicines and filling of prescriptions incident to the business were in the hands of a competent registered pharmacist. He testifies, and his testimony is not disputed, that, shortly before the explosion happened, he received an order for colored fire of some kind; that the order was handed to him personally; that it was for someone out of town; that the order did not prescribe the ingredients; that he had a recognized formula for mixing the compound; that he had the formula before him when he mixed the compound; that the ingredients in the compound were shellac, sulphur, and chloride of potash--one ounce of shellac, two ounces of sulphur, and six ounces of chloride of potash;...
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