Stephenson v. Sheffield Brick & Tile Co.

• Decision Date: 10 March 1911
• Court: Iowa Supreme Court
• Parties: STEPHENSON v. SHEFFIELD BRICK & TILE CO. ET AL.

151 Iowa 371

130 N.W. 586

STEPHENSON

v.SHEFFIELD BRICK & TILE CO. ET AL.

Supreme Court of Iowa.

March 10, 1911.

Appeal from District Court, Franklin County; Chas. E. Albrook, Judge.

Action at law to recover damages for the death of Malcolm H. Gillott, due to defendants' failure to guard a dangerous piece of machinery upon which there were exposed set screws revolving with a heavy shaft. Trial to a jury. Verdict and judgment for plaintiff in the sum of $4,000. Defendants appeal. Affirmed.Carr, Carr & Evans and David Evans, for appellants.

R. W. Birdsall, Birdsall & Birdsall, and B. H. Mallory, for appellee.

DEEMER, J.

The defendant company is a corporation operating a brick and tile factory in Franklin county, Iowa, and defendants Carhart and Stuart are, respectively, superintendent and foreman of the plant, having full power and management thereof. Gillott began work for defendants in August of the year 1908, but was not required to do any work with machinery or under the buildings until January 25, 1909, at which time he was put in charge of a hoisting machine operated by defendant. He received the injuries from which he died February 2d of the same year, some six or seven days after he began work. Prior to beginning work for defendant, he had been a farmer all his life, and when directed to work about the hoistingmachine he was given no particular instructions and was not warned regarding the dangers attending the work. At the time of receiving his injuries, Gillott was attending to his duties about the hoisting machine, which is thus described in the testimony: “It is the machine which hauls the clay out of the pit into the building. The car is drawn from the pit by means of a cable operating around a drum, which is worked by a clutch wheel. The drum is caused to revolve by means of a cog pinion connected with a revolving shaft. The operator of the machine has no control over the shaft which operates the drum. The shaft is located on the front part of the frame of the machine and about 18 inches from the drum and is about 8 feet long. The end of the shaft nearest which the operator stands is held in the frame by a collar around the shaft with set screws in it, and they extend out about three-fourths of an inch beyond the collar. Sometimes in the working of a machine, and after the car reached the pit, the cable would slacken and unwind on the drum and the coils of the cable would have to be straightened. I done this both from the rear and from in front of the machine. It could be done either way.”

For a better understanding of this machine we attach a photograph which shows the drum, the shaft, and the set screw:

IMAGE

The set screws were entirely unguarded, unless the angle bar, a part of which is shown in the photograph, may be considered in the nature of a guard. No eyewitness saw the accident, and the following is the only direct evidence as to how it occurred, save a physical fact or condition which will be hereinafter referred to: “I heard Gillott scream the day he was injured, and I don't think it was five minutes thereafter before I saw him coming downstairs into my room. He sat down on the stairs, and I went to him. I noticed that he was bleeding in the arm pit under his arm, and that his coat sleeve was torn off. He said he got caught in the gearing. Said he was pushing the cable over on the drum at the time. I helped him to the engine room and telephoned for a doctor.” The physical fact mentioned is shown by the following testimony: “The sleeve of Gillott's coat was found wrapped around the shaft on the hoisting machine, and it was caught by both the set screws. The end of the sleeve near the shoulder was on the set screws. The rest of the sleeve was wrapped around the shaft.”

As already stated, Gillott was not directed as to how to do the work of unwinding or winding the cable. Appellant says that he was ordered to do it from the rear of the machine; but this is an evident mistake.

Section 4999-a2 of the Code Supplement of 1907 reads as follows: “It shall be the duty of the owner, agent, superintendent or other person having charge of any manufacturing or other establishment where machinery is used, to furnish and supply or cause to be furnished and supplied therein, belt shifters or other safe mechanical contrivances for the purpose of throwing belts on and off pulleys, and, wherever possible, machinery therein shall be provided with loose pulleys; all saws, planers, cogs, gearing, belting, shafting, set screws and machinery of every description therein shall be properly guarded. No person under sixteen years of age, and no female under eighteen years of age shall be permitted or directed to clean machinery while in motion. Children under sixteen years of age shall not be permitted to operate or assist in operating dangerous machinery of any kind.”

In many cases we have held that a failure to comply with the provisions of this law constitutes negligence. Kirchoff v. Supply Co., 123 N. W. 210;Woolf v. Nauman Co., 128 Iowa, 261, 103 N. W. 785;Bromberg v. Laundry Co., 134 Iowa, 38, 111 N. W. 417. And we have already held that an employé does not assume the risks incident to the use of a machine which is not guarded as required by statute, although he knows of the unguarded condition and apprehends the danger incident to the use thereof. Poli v. Coal Co., 127 N. W. 1105;Tyrrell v. Cain, 128 N. W. 536. See, also, Callopy v. Atwood, 105 Minn. 80, 117 N. W. 239, 18 L. R. A. (N. S.) 593. It is also true, however, that an employé working about an unguarded machine may be guilty of contributory negligence. See the Tyrrell Case, supra, and the decisions cited therein. Ordinarily this question of contributory negligence is one of fact for a jury and not of law for the court. In this connection we may also announce the further rule many times stated by this court that, where there are no eyewitnesses of a transaction in which a party is injured and in which he may or may not have been guilty of contributory negligence, the natural instincts of self-preservation may be considered as bearing upon his conduct. The rule was stated in this language in Dalton v. Railroad Co., 104 Iowa, 26, 73 N. W. 349: “It is a recognized rule of human conduct that persons in their sober senses naturally and instinctively seek to avoid danger. Therefore it must be presumed, until the contrary appears, that the deceased, prompted by this natural instinct, did exercise care in approaching and going upon the crossing and whether the circumstances are such as to overcome the presumption that deceased, prompted by the instinct of self-preservation, did exercise the care required of him, was a question for the jury.” See, also, Rothrock v. Cedar Rapids, 128 Iowa, 252, 103 N. W. 475.

With this statement of the case and of the applicable rules of law, we may now go to the points made for appellant as grounds for reversal. It is contended that there is no testimony that the machine was not properly guarded. The kind of guard to be used is not defined by statute; but we have said that it must be such an one as reasonably accomplishes its purpose. Kirchoff v. Creamery Co., supra. The photograph discloses that there was no cover or guard over the set screws which fastened the collar to the shaft, and the only pretense of a guard is the angle bar, to which reference has already been made. A jury may well have found that this angle bar was not placed upon the machine as a guard against the dangers incident to the revolving set screws, but as a brace for a lever which controlled the action of the machine. Indeed, we think the photographs, some of which we do not set out, clearly show that this was the purpose of the angle bar. Surely there was enough to take the case to the jury upon this proposition, even though it cannot be said as a matter of law that the machine was unguarded.

2. The trial court instructed upon this matter of guards as follows:

“(4) It is the law of this state that it shall be the duty of the owner, agent, superintendent, or other person having charge of any manufacturing or other establishment where machinery is used, to provide all saws, planers, cogs, gearing, belting, shafting, set screws, and machinery of every description therein with proper guards, and a failure to do so, is negligence on the part of such owner, agent, superintendent, or other person having charge of such manufacturing or other establishment where the machinery is used.

(5) So, in this case, if you find that the plaintiff has proven by a preponderance of the evidence that the defendant did own and operate a plant where machinery was used, and that the said Malcolm Gillott was employed therein by the said company for the purpose of working in the plant of said company with, or at, or about a machine where there were set screws and a revolving shaft used in connection therewith, and that said set screws and shaft were unguarded, such conditions existing would constitute negligence on the part of the said defendant company, rendering it liable for any injury to the said Malcolm Gillott resulting from his coming in contact with the said set screws or revolving shaft, if you further find that the plaintiff has proven that the said Malcolm Gillott did not by his own negligence contribute to the said injury, or that the defendant has not proven that the said Malcolm Gillott did assume the risk of such conditions. * * *

(8) The owner of premises on which machinery with set screws and revolving shaft is used or operated should avoid danger to his employés working about or with such machinery by guarding the set screws and revolving shaft used therein. The employer is not required, however, to insure his employé an absolutely safe place to work, and the duty to furnish a safe place is performed when the employer has used all reasonable care and...