Stafford v. Gowing
| Decision Date | 03 April 1945 |
| Docket Number | 46653. |
| Citation | 18 N.W.2d 156,236 Iowa 171 |
| Parties | STAFFORD v. GOWING. |
| Court | Iowa Supreme Court |
John S. Redd and Eaton & Mauk, all of Sidney, for appellant.
Kimball Peterson, Smith & Peterson, of Council Bluffs, and Henry Read, of Shenandoah, for appellee.
Defendant's motion for directed verdict, which was sustained, challenged the sufficiency of the evidence of defendant's negligence and plaintiff's freedom from contributory negligence. We think the case should have been submitted to the jury. We will review the evidence in the light most favorable to plaintiff.
Plaintiff age forty, employed in a lumber yard in the small town of Farragut, desired a piece of six-inch soil pipe to put in the flue of his chimney. A plumber in Farragut sent plaintiff to defendant who operated a plumbing shop in the rear of his residence in Shenandoah. Plaintiff went to defendant's residence in the evening, found defendant sitting on his front porch and asked him for a piece of six-inch soil pipe about a foot long. Defendant, accompanied by plaintiff, went back to his shop to see if he had the pipe. Defendant found a three-foot length of such pipe leaning upright against the outside of one of two buildings he used for his shop. The pipe was made of cast iron and weighed about 60 pounds. Defendant threw the pipe on the ground between the two buildings. The pipe lay northwesterly and southeasterly.
Plaintiff was standing about four feet directly to the northwest from the end of the pipe. Defendant then went into his shop to get a hammer and cold chisel, returned, 'squatted down' on the east side of the pipe and proceeded to cut the end nearest to plaintiff by holding the chisel against the pipe and striking the chisel with the hammer. Five to ten minutes later, when the cutting was nearly completed, a small chip or splinter flew from the cast iron pipe into plaintiff's eye, causing a painful and serious injury resulting in complete loss of sight in that eye. Plaintiff threw his hand over his eye and said, 'I got something in my eye.' Defendant instinctively remarked 'I should have warned you.' It is conceded no warning of any kind was given plaintiff. Nor did defendant say anything to plaintiff as to where he should or should not stand. Defendant finished cutting the pipe and handed it to plaintiff who paid him 75 cents. Defendant advised plaintiff to see an eye specialist before he left town. There were no other witnesses to the accident.
It is plaintiff's claim that it is inherently dangerous to cut soil pipe with a hammer and chisel because it is susceptible of shattering and chipping; that this danger was known to defendant but not to plaintiff; that defendant was negligent in not warning him of the danger in the cutting of the pipe and also in the manner in which he cut the pipe.
Defendant admits that cast iron characteristically shatters and chips when chiseled. There is little doubt that defendant, a plumber of 35 years experience, knew of this danger. Plaintiff, however, testifies repeatedly that he did not know of any such danger nor of the characteristics of soil pipe. Defendant argues that plaintiff was bound to know of the dangers incident to cutting pipe with a chisel and brands plaintiff's testimony on this point as 'preposterous.' We are not justified in holding as a matter of law that plaintiff must have known of the danger that splinters would fly while the pipe was being cut.
Plaintiff had worked in the Farragut lumber yard about eight years. The lumber yard did not sell soil pipe. Before working in the lumber yard, plaintiff had worked as a carpenter for about eight years but in such work had never used soil pipe nor worked on buildings where it was used. Most of his work had been on farm buildings where soil pipe was not installed. Plaintiff had not used a cold chisel. Plaintiff knew nothing about the method of cutting soil pipe and had never seen it cut before. Some five years before, plaintiff had purchased a piece of soil pipe for his chimney but he did not recall whether it had to be cut to the length he wanted it. Before plaintiff was a carpenter he had been a farmer. Defendant testifies that the fact plaintiff had worked in a lumber yard and as a carpenter had nothing to do with defendant's failure to warn him of the danger of flying splinters.
Savage, a plumber of 25 years experience, was a witness for plaintiff. Before he was a plumber he had been a farmer. Savage testifies that until he became a plumber he did not know that cast iron was apt to chip when struck and that farm implements are not made of cast iron.
The accident occurred in a space about 8 feet wide between the two shop buildings. The buildings, each about 20x24 feet, abutted on an alley. Plaintiff's car was parked in the alley near the end of the space between the two buildings. It was in the eventing and the light was not good. There were shadows that covered the entire space. Plaintiff could not see any pieces fly while the pipe was being cut. Plaintiff was 5 feet 4 inches tall and was standing upright while the cutting took place.
Three witnesses testify to the usual method of cutting soil pipe: plaintiff's witness Savage, defendant's witness Doyle and defendant himself. All agree that it is customary to raise the end to be cut so it is off the ground. This is usually done by placing a piece of wood, generally 2x4 inches, or a piece of ingot lead, about 2x4, under the pipe at the place to be cut. Savage never had cut a piece of soil pipe without a 2x4 under it. When the end to be cut is raised it is easier to cut the pipe, less force is necessary, the cutting is done more quickly, and there is less danger of chipping. It is conceded that no piece of wood, lead or other material was used on this occasion. Defendant had pieces of ingot lead in his shop which could easily have been used. Plaintiff testifies the pipe that was cut rested flat on the ground just where defendant threw it. Defendant contends the pipe was placed on a pile of grass he had raked from his lawn and that the grass served the purpose of a 2x4 or piece of lead. Plaintiff says there was no pile of grass there. Savage testifies a pile of grass would not hold soil pipe in place while being cut unless there was some weight on it to hold it.
Defendant's witness Doyle says the customary method of cutting soil pipe is to place one knee on the pipe. Savage testifies that if the pipe is held firmly while being cut, it snaps off more quickly, it takes less 'power' and chips less easily than it does where the pipe is lying loose on the ground. Savage says he never cut soil pipe without holding it with his knee. Defendant admits he did not place his knee or other part of his body on or against the pipe while he was cutting it, but says part of the hand that held the chisel came in contact with the pipe. All that held the pipe was the weight of the hand that held the chisel. The little finger and side of the palm were in contact with the pipe. Defendant testifies he was wearing a pair of good trousers he did not want to get dirty so he just 'squatted' and that if he had not been wearing good clothes he would have knelt down with one knee on or against the pipe. Plaintiff says he saw the pipe bounce while defendant was cutting it.
There is ample testimony that in cutting soil pipe it chips more freely when hard blows are struck. Defendant testifies Savage testifies, 'if you are careful and don't hammer too hard, it will not chip so much; but, if you go after it like you meant business, why, any lick that you hit will chip, more so when you are at the last end of it.' Plaintiff testifies...
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