Stomne v. Hanford Produce Co.

Citation108 Iowa 137,78 N.W. 841
PartiesSTOMNE v. HANFORD PRODUCE CO.
Decision Date08 April 1899
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from district court, Woodbury county; F. R. Gaynor, Judge.

Action to recover for personal injuries caused, as alleged, by the negligence of the defendant. There was a jury trial. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.Taylor & Burgess, for appellant.

Wright, Call & Hubbard, for appellee.

WATERMAN, J.

Defendant was engaged in the cold-storage business at Sioux City, using therefor a building several stories in height. Plaintiff was in its employ as a common laborer. In the building were two elevators used for the purpose of carrying merchandise from floor to floor. The elevators were of equal lifting capacity, though one had a larger platform than the other. They stood quite close together, the larger one being nearer the door through which produce was received into the building. On one occasion, while plaintiff and a co-employé, one Sundloff, were engaged in oiling the wire cable that lifted the larger elevator, Sundloff noticed that the cable was defective in one place. As he says: “I saw one of them twists pretty nearly broken off, and two of them--There is three twists on a cable, and two of them looked to me larger than the other, and as though they kind of give, and the wire around them was kind of broken off, like it had been chopped off with a hatchet.” Sundloff called plaintiff's attention to the condition of the cable. Stomne looked at the defect, and then the two went to the office, and reported what they had seen to Holcomb, who was superintendent. The two men, in company with Holcomb, returned, and again looked at the cable. Holcomb told them he would report the matter, and a day or two after said to them that the cable would be changed end for end. This was done later. The cable was operated by being wound and unwound from a large drum at the top of the building. From this it passed over a pulley, and down to the elevator to which it was attached. Plaintiff says of the change made: “Before the cable was changed end for end, I think the worn place could come between the elevator and the pulley when the elevator was on the first floor. After the change, the worn place shifted to the other side.” After this change, Holcomb said, in effect, to plaintiff, that he thought the elevator was all right until the spring work was over, but that he should not use it to the top floor unless obliged to do so. Shortly after this plaintiff and Sundloff were engaged in storing produce received. Both elevators were idle. They put a truck load of freight upon the large elevator, got upon it themselves, as was customary, and started for one of the upper floors. When near the second floor, the cable parted at the worn or defective place, and in the fall that resulted plaintiff was seriously and permanently injured. Some other facts necessary to an understanding of the points made will be stated in connection with the issues, as we consider them.

2. No question is made as to the finding of negligence on defendant's part. Appellant's first contention is that plaintiff, having knowledge of the defect in the cable, and thereafter using the elevator without complaint or objection, must be held to have assumed the risk in so doing. The doctrine of assumption of risk involves two elements,--knowledge of the defect, and an appreciation of the danger. Brownfield v. Railway Co. (Iowa) 77 N. W. 1038;Mayes v. Railway Co., 63 Iowa, 562, 14 N. W. 340, and 19 N. W. 680;Worden v. Railway Co., 72 Iowa, 201, 33 N. W. 629;Cook v. Railway Co. (Minn.) 24 N. W. 311;Russell v. Railway Co. (Minn.) 20 N. W. 147. It is true that an employé is held to have knowledge of those things which the exercise of ordinary care should reveal, and that there may be conditions or defects so obviously dangerous that his knowledge of them will be held, as matter of law, to impress his mind with the risk arising therefrom. But is this such a case? If we should say that plaintiff knew, or should have known, that the cable was dangerously defective as it was used when he first saw the worn or broken strands, we must then take into consideration what followed. The employer, upon being notified, attempted to put the elevator in condition for use. Plaintiff was then told it was fit for service until the spring work was through; to use it to the lower floors, but not to the top floor, unless it was necessary. The elevator was used thereafter with the knowledge of the defendant; Holcomb riding upon it with plaintiff and Sundloff only the day before the accident. We cannot say, as matter of law, under these circumstances, that plaintiff knew, or should have known, the risk in going upon this elevator. The most that can be consistently urged in defendant's behalf is that there was evidence to sustain a finding in its favor. But the jury found against it, and the fact is thus settled, so far as our consideration of the case is concerned.

3. It is thought the evidence shows that plaintiff was guilty of contributory negligence. What has just been said will apply on this point also. It was customary for the men moving freight from floor to floor in the warehouse to ride with it on the elevator. There was a stairway, also, that afforded access to the upper floors of the building, but the testimony seems to show that some one had to be on the elevator in order to properly manage it, and it is undisputed that the use of the stairway by the men would have resulted in a loss of time. If plaintiff is not held to knowledge of the danger in using this elevator, there is no warrant for saying he was negligent in not making use of the smaller elevator, which was accessible at the time, or in not making his own ascent on the stairway. As before, we say this was a jury question, and with the finding we cannot interfere.

4. Next, we come to the issue of compromise and settlement. It is necessary to set out some further facts, in order that the claims of the parties on this branch of the case may be fully understood. Shortly after plaintiff's injury, Hanford, the president of defendant company, and Stough, its vice president, called upon him at his home. As to what transpired, these witnesses testify, in effect, that plaintiff and his wife said they had been advised to bring an action against defendant, that the physician told them Stomne would not be able to return to his work for some three or four months. Hanford made a proposition to settle by paying plaintiff's wages, $10 per week, until he was able to return to light work. At the wife's suggestion, Hanford included in this offer the payment for all medicines and the physician's bill. This offer was accepted, and plaintiff agreed to bring no action. Plaintiff testifies that he did not agree to accept the proposition as a settlement of his claim; that, while the offer was made on account of his injuries, yet he did not agree that he would not sue; that Hanford said: “When I should be well, if I should then want to go and bring suit against them, I should come to them first.” To some extent plaintiff is corroborated by his wife. It is not disputed that, under this arrangement, defendant continued paying plaintiff his wages during a period of one year,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT