Sutton v. Des Moines Bakery Co.

• Decision Date: 03 July 1907
• Citation: 112 N.W. 836,135 Iowa 390
• Parties: A. G. SUTTON, Appellant, v. DES MOINES BAKERY COMPANY
• Court: Iowa Supreme Court

112 N.W. 836

135 Iowa 390

A. G. SUTTON, Appellant, v. DES MOINES BAKERY COMPANY

Supreme Court of Iowa, Des Moines

July 3, 1907

Appeal from Polk District Court.--HON. A. H. MCVEY, Judge.

ACTION to recover damages for personal injuries received by plaintiff while in defendant's employ, and alleged to have been due to defendant's negligence. There was a directed verdict for the defendant, and from judgment thereon plaintiff appeals.

Affirmed.

Thos A. Cheshire, for appellant.

Clark & McLaughlin, for appellee.

MCCLAIN J. WEAVER, J., dissenting.

OPINION

MCCLAIN, J.

At the time of receiving the injury for which recovery is sought plaintiff, as defendant's employe, was in charge of a machine consisting of two steel rollers six or eight inches in diameter, and about two feet long, through which it was his business to feed dough for the purpose of kneading it; the operation consisted in putting a batch of dough on a slanting board facing the operator, down which it would slide and pass through the rollers, and be deposited on a platform beneath, from which the operator would take it, and throw it again on the slanting board above, repeating the operation as often as was necessary to bring the dough to the proper consistency. After a batch of dough was thus kneaded, it was necessary to clean the rollers by means of a flat piece of steel with handle, by which it was held against the face of the roller while revolving, thus scraping off the adhering dough. While plaintiff was thus holding the scraper against the front part of the roller next to him, which moved upward in its revolution, his scraper was caught in some way, and his hand was thrown upward and backward against the slanting board, and by reason of a movement of his body his hand was caught and drawn downward between the revolving roller, so as to be crushed. There are numerous allegations of negligence, which may for convenient discussion be divided into two grounds of complaint: First, that defendant did not furnish plaintiff a safe place to work or safe machinery and appliances with which to do his work; and, second, that it failed to instruct plaintiff how to perform the work without danger. The defendant denied negligence on his part, and affirmatively pleaded assumption of risk and contributory negligence on the part of plaintiff.

I. The defect in the machinery which the plaintiff sought to establish was that there was no hood over the front roller, as there should have been to prevent plaintiff's hand as it was thrown upward by the movement of the roller when the scraper was caught by some obstruction upon it from being carried over and caught between the two rollers. As this danger was the only one relied upon as rendering the place where plaintiff was working an unsafe place to work, the unsafety of the place and the defect of the machine constituted but one ground of alleged negligence. It is contended for plaintiff that the failure to provide such a safety appliance was in violation of the provisions of chapter 149, Acts of 29th General Assembly (Code Supp., 1902, section 4999b). The only language found in the statute which seems to have any bearing on the duty of the defendant in this respect is in section 2 of the Act, where this language is found:

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.

With reference to the present case, the only direction in the statute having any application is that "all . . . machinery of every description . . . shall be properly guarded." It is difficult to see how this statute imposes any greater duty upon the defendant than that which would rest upon it without special statute.

The defendant would be negligent if it failed to properly guard these rollers for the purpose of preventing injury that would otherwise be likely to result to an employe, and it may be conceded that, on the question of defendant's negligence, it would have been proper to submit to the jury the issue as to whether the failure to provide a safety hood was negligence under the circumstances. Similar considerations apply to the complaint that defendant failed to advise the plaintiff of the danger incident to the operation in which he was engaged, and the means of avoiding such danger. It was, no doubt, a question for the jury whether the danger was such that as to a person not capable of appreciating it some warning or caution was proper.

II. But, conceding that there was a question for the jury as to whether defendant was negligent in these respects -- i. e., as to whether a safety hood should have been supplied and whether an employe not familiar with the danger should have been warned -- it still remains to be determined whether there was any liability of the defendant on account of those omissions to this plaintiff. If plaintiff knew of the absence of a safety hood, and was, as a reasonably prudent man, charged with knowledge of the danger to him in continuing in his employment in the absence of such a safety hood, then he assumed the risk, and defendant is not liable to him for the injury which he suffered.

Now, it appears that plaintiff had previously been employed for some time in another bakery, operating a similar machine which was supplied with a safety hood, and he testified that during the four or five days of his employment in defendant's bakery in charge of the machine which caused him the injury he noticed, as he could not have failed to notice, that no safety hood was provided. If he was aware of the danger to himself incident to the operation of the machine without such safety hood, he must be charged with having assumed the risk. That he must have been aware of this danger is perfectly plain. It was open...