Steburg v. Vincent Clay Prods. Co.
| Decision Date | 17 December 1915 |
| Docket Number | No. 30323.,30323. |
| Parties | STEBURG v. VINCENT CLAY PRODUCTS CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Webster County; C. G. Lee, Judge.
Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Clark, Byers & Hutchinson, of Des Moines, for appellant.
Healy, Burnquist & Thomas, of Ft. Dodge, for appellee.
The defendant corporation was a manufacturer of clay products, and plaintiff was one of his employés in that business. In his petition plaintiff states that in performing service for defendant he was required, among other things, from time to time, to clean away the dirt which accumulated upon a certain conveyor belt and pulley used in connection with the machinery in the mill. In attending to that duty in the manner in which defendant had instructed him to perform it, and without negligence on his part he says his arm was caught and drawn into the pulley, and he was thereby severely and permanently injured. He charges his injury to the negligence of the defendant in several particulars, but two of which were submitted to the jury. These were: (1) That the defendant was negligent in that it did not properly guard a certain belt and pulley, as required by the factory acts, and about which plaintiff was required to work; (2) that the defendant was negligent, in that it did not exercise reasonable caution and prudence on its part, and equip and supply the plaintiff with a proper or adequate tool or implement with which to remove the dirt from said pulley, as he was required in the course of his employment to do. The defendant denies that it was in any manner negligent, and pleads that if plaintiff was injured in the course of his employment, it was caused by his own want of reasonable care, and, furthermore, that plaintiff had full knowledge of the defects, if there were any, as he alleges, in the machinery and appliances, and full knowledge of the acts and omissions which he charges against the defendant, and with such knowledge, elected to continue in the employment and service, and thereby assumed all risks of the dangers so occasioned. The cause was tried to a jury, which returned a verdict for plaintiff. Defendant's motion for a new trial was overruled, and an appeal has been taken from the judgment rendered on the verdict.
Of the immediate circumstances attending plaintiff's injury many are without dispute. Some of these are as follows: The mill was supplied with a belt 14 inches in width and 34 feet in length, known as a conveyor. At one end of the belt and above it was a clay bin, from which clay was dropped upon the top of the belt, which carried it to an elevator at the other end, where it was received and lifted to the pugmill. Part of the distance the belt ran through a tunnel, but at the east end where the clay was delivered there was a section of it uncovered and unguarded. At this end, where the clay was delivered to the elevator, the belt ran over a pulley or belt wheel, also unguarded, which was 14 inches in length and about the same measure in diameter. At times, clay would drop on the lower half of the belt and be carried around to the pulley where it would stick and cause the machines to operate unsatisfactorily. To remedy this trouble so far as possible it was the custom in the mill for an employé, from time to time, to hold a shovel, or other instrument answering the same purpose, against the surface of the pulley while in motion, and thus scrape or clean off the accumulation of clay. At the time of his injury plaintiff was employed about this part of the mill, and it was his duty to clean the pulley when occasion required. For that purpose he used a short stick about 2 inches square. While holding the stick against the pulley, a steel hook which served to fasten together the sections of the belt caught his arm, drawing it for its full length up to the shoulder between the belt and the pulley. The lower end of the humerus was broken off, and he was otherwise bruised and suffered much pain. The extent and character of the injury, and whether permanent or not, are subjects of controversy. Other matters of evidence, so far as seems necessary, will be referred to in discussing the several propositions of law advanced in argument.
[1][2][3] I. At the close of the evidence defendant moved the court to direct a verdict in its favor on the ground that plaintiff had wholly failed to sustain the charge of negligence made in the petition. The motion was denied, and appellant assigns error thereon. Referring to the first charge of negligence based upon the defendant's failure to guard the machinery at this point, counsel insist there is no evidence whatever that it was reasonably practicable to guard this machinery, and therefore as a matter of law the jury should not have been permitted to consider that question. But it must not be overlooked that, it having been shown or admitted that the machinery was unguarded, there was no burden upon the plaintiff to show it reasonably might have been. The fact being shown, the statute itself (Code Supp. 1913, § 4999a2) makes a prima facie case on this question (Kimmerle v. Altar Co., 154 Iowa, 48, 134 N. W. 434, and McCarney v. Bettendorf, 156 Iowa, 418, 136 N. W. 920), and it was for the appellant to show, if it could, that no guard was practicable. Contrary to the further contention of the appellant, we find the evidence insufficient to hold as a matter of law that such defense has been established. The presumption is that all machinery about which employés are required to work may be reasonably well guarded. The only witness speaking upon the subject is Mr. Goldner, superintendent of defendant's mill, who was called as a witness by the plaintiff. Naturally this witness was somewhat slow to admit that a serviceable guard could have been employed, and said, in substance, that a guard or rail would make it harder to clean the pulley, and insisted that there was no danger in cleaning the pulley without a guard if a shovel was used for that purpose. On being pressed by counsel the witness finally answered as follows:
If there had been a railing at the top of the belt, there would have been no chance for an employé working there of bumping into the belt and being pulled into that belt, unless he would reach in there. There would be no chance of the belt giving him an impetus which would put him into the belt, if you had a railing parallel to the top of the belt. That this does not make a conclusive showing upon which to relieve defendant from the statutory duty to guard its machinery is too manifest for argument.
The case of Waddell v. Basket Co., 159 Iowa, 736, 140 N. W. 805, relied upon by appellant, is not at all in point. There the machinery was guarded by boards, which plaintiff himself removed in order to put his hand in the place of danger where it was injured. Moreover the plaintiff in that case had not been ordered to do the thing he was attempting to do, and had he kept in the line of his duty, he would have escaped injury. The facts here make a wholly different case, and call for the application of a different principle.
[4] On the other phase of defendant's alleged negligence the sufficiency of the evidence to take the question to the jury is not open to doubt. Plaintiff testifies positively that when he was first assigned to this duty a short time before his injury, he was not familiar with the work, and the superintendent of the plant instructed him to use a straight stick with which to clean the pulley, and at the same time took a stick and illustratedto him the manner in which it should be held for that purpose. The defendant's witnesses say that a shovel is the proper and safe instrument for cleaning the pulley, and that a stick cannot be so used with safety. If the jury believed that the stick was not a proper appliance for such use, and that plaintiff, being without previous experience, employed it for that purpose at the direction of the superintendent (and such finding, it will be seen, has express support in the record), the conclusion therefrom that defendant did not exercise due care with respect to the implement furnished for the performance of this duty was inevitable.
[5] II. If defendant was negligent as charged, was its want of care in these respects the proximate cause of plaintiff's injury? It is argued for defendant that, assuming the truth of plaintiff's testimony that his arm was caught by a wire or hook in the belting and thereby drawn into contact with the pulley, then the proximate cause of his injury was such wire or hook and not the unguarded condition of the machinery. But the conclusion thus stated does not necessarily follow from the premise. On the contrary, it was open to the jury, from the description of the machinery and the manner of its use, to find that a proper guard thereon would have protected the workman against this risk, or have prevented his being drawn or pulled into contact with the pulley, and in such case the proximate cause of the injury would clearly have been the want of a proper guard, and not the catching of the hook upon plaintiff's sleeve. This is none the less true because of the fact that if the law had not charged the defendant with the duty of guarding the place the proximate cause of the injury would have been the hook....
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