Verlin v. U.S. Gypsum Co.

• Decision Date: 04 April 1912
• Citation: 135 N.W. 402,154 Iowa 723
• Parties: VERLIN v. UNITED STATES GYPSUM CO.
• Court: Iowa Supreme Court

154 Iowa 723

135 N.W. 402

VERLIN

v.UNITED STATES GYPSUM CO.

Supreme Court of Iowa.

April 4, 1912.

Appeal from District Court, Webster County; C. G. Lee, Judge.

Action for damages resulted in a directed verdict for defendant. Judgment was rendered thereon, and plaintiff appeals. Reversed.Healy & Healy, of Ft. Dodge, for appellant.

B. J. Price, of Ft. Dodge, and Clark & Hutchinson, of Des Moines, for appellee.

LADD, J.

The plaintiff was employed by the defendant at what was known as “the Mineral City Mills” to wash boilers, and do such work as might be assigned him by the foreman. The pump which supplied water for the mill was located about one-quarter mile away, and was operated by a motor. This motor and the pump were in a small building eight feet wide by ten feet long, with window and door, and nearer one side than the other, but there was room enough to pass between them and the sides. The foreman accompanied plaintiff to this building, and, after showing him how to oil the pump and motor, instructed him to do so twice a week. He then took an oil can, having a nozzle about three inches long, and, after stopping the machine by the use of the switch, oiled the pump. He then started the machine, and oiled the motor while it was in motion. The plaintiff did the oiling as required several times, and on November 28, 1909, put in a valve and oiled the pump, and then, after starting the motor, proceeded to oil it. While doing so his foot slipped, and he threw out his hand to save himself from falling, when it was caught between two cogwheels which transmitted the power from the motor to the pump, and was seriously injured. One of these wheels was large and the other small. Both were entirely unguarded. The floor seems to have been sustained by posts, and there was “a little ice on the floor, just enough to make it slippery.” It was usually wet, and, as the weather was cold, became icy. Plaintiff had cleaned the ice away several times to enable him to open the door, but did no more, and had not been directed to care for the building. He testified that he did not see anything wrong about oiling the motor in the way he did, and that he did so because he thought it safe, and the foreman had shown him that way to do it, and that his mind was wholly on the work at the time he received the injury. On cross-examination he said that he knew there were cogwheels within a few inches of his hand which were running at the time, and that, if he got his hand in between them, it would be hurt, that he did not think about falling at the time, but, of course, knew that, if he fell toward the machine, he would likely be hurt.

[1] 1. As the statute required the cogwheels to be properly guarded and as defendant had provided no guard whatever for them, it was negligent. Kirchoff v. Creamery Co., 148 Iowa, 508, 123 N. W. 210;Stephenson v. Sheffield Brick and Tile Co., 151 Iowa, 371, 130 N. W. 586.

[2] But it is said that, though negligent in this respect, such negligence might not have been found the proximate cause of the injury. What was said in Buehner v. Creamery Package Co., 124 Iowa, 445, 100 N. W. 345, 104 Am. St. Rep. 354, and Miller v. Cedar Rapids Sash & Door Co., 134 N. W. 411, disposes of this contention. See, also, Balzer v. Warring (Ind.) 95 N. E. 260, and Bales v. McConnell, 27 Okl. 407, 112 Pac. 978. Appellee undertakes to distinguish the cited cases from that at bar by pointing out that in these nonresponsible agencies were said not to intervene between the unguarded machinery and the injury, and, at most, to have been concurrent therewith, while here, as is alleged, the injury was through plaintiff's fault.

[3] If there is such difference, then surely there can be no recovery, for contributory negligence is a defense in actions for damages resulting from the violation of the factory act the same as in others. But, as will hereafter appear, the issue as to whether plaintiff was negligent was for the jury to determine, and, if it be found that he was not negligent, then, under the above decisions, the omission to properly guard the cogwheels might have been found the proximate cause of plaintiff's injuries, and that issue was for the jury.

[4] 2. Nor can it be said that plaintiff had assumed the risk of being injured by the unguarded cogwheels. Poli v. Numa Block Coal Co., 149 Iowa, 104, 127 N. W. 1105, 33 L. R. A. (N. S.) 646;Stephenson v. Sheffield Brick Co., 151 Iowa, 371, 130 N. W. 586. The statute exacting proper guards for specified pieces of machinery, including cogwheels, was enacted for the protection for employés exposed to danger therefrom, and to recognize assumption of risk as a defense in such cases where it was not the employer's duty to remedy the defect would defeat the purpose of the law. The distinction between such a case and one arising under a statute of general application is manifest. See Martin v. Railway, 118 Iowa, 148, 91 N. W. 1034, 59 L. R. A. 698, 96 Am. St. Rep. 371. Any doubt that might have existed was disposed of by chapter 219 of the Acts of the Thirty-Third General Assembly, however, and, as according to the evidence it was no part of plaintiff's duty “to make repairs or remedy defects,” he cannot be said to have assumed the risk. Miller v. Cedar Rapids Sash & Door Co., 134 N. W. 411. The assumption in appellee's argument that it was a part of plaintiff's duty to keep the floor clear of ice is contrary to the evidence.

[5] 3. The main contention of appellee, and doubtless that on which a verdict...