Vohs v. A. E. Shorthill & Co.
| Decision Date | 12 May 1906 |
| Citation | 107 N.W. 417,130 Iowa 538 |
| Parties | C. M. VOHS, Appellee, v. A. E. SHORTHILL & COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--HON. OBED CASWELL, Judge.
ACTION to recover damages for personal injury. Judgment for plaintiff, and defendant appeals.
Affirmed.
J. L Carney, for appellant.
Boardman Aldrich & Lawrence and F. E. Northrup, for appellee.
The defendant corporation owns and operates a foundry and machine shop in the city of Marshalltown, Iowa, and at the time of the accident in controversy the plaintiff was an employe in its service in and about said business. The plaintiff entered said employment on October 5, 1902. For a period of about four days he was kept at work in one of the buildings cutting rivets from old bridge beams and moving irons from place to place. On the fifth day of his service he was directed by the foreman to go into another shop and "help the blacksmith hold a rail." The blacksmith was engaged in cutting steel railway rails into short lengths. The process employed appears to have been to lay the rail upon an anvil and while plaintiff held it in position and the blacksmith held the cutting tool, a third person or striker delivered the blows with a heavy sledge. While plaintiff was thus engaged, and about three and a half hours after entering the shop, a flying piece of steel, slivered or broken from the rail or sledge by the force of the striker's blow upon the chisel, entered the eye of plaintiff inflicting an injury destroying its sight. Plaintiff had no prior experience in iron or steel work, and this was known to the defendant at the time of his employment. The alleged negligence of the defendant on which a recovery was sought and submitted to the jury was in ordering plaintiff to work in a known place of danger without warning or caution, knowing his inexperience in such matters, and in failing to warn him of the dangers peculiar to the employment or instruct him how to avoid such dangers and protect himself from injury. The defendant denies all allegations of negligence on its part, says the plaintiff was himself guilty of negligence contributing to his own injury, and that he assumed the risk of injuries upon entering said employment.
I. This case has already been once before this court when a new trial was ordered on account of error in the introduction of testimony. Vohs v. A. E. Shorthill Co., 124 Iowa 471, 100 N.W. 495. On that appeal the question whether the facts shown were such as to justify a finding that the work was of a character to expose plaintiff to peculiar dangers, which, as an inexperienced workman, he could not reasonably have recognized and appreciated, thereby casting upon his employer the duty to warn and instruct him in reference thereto, was ruled by us against the appellant's contention and in the absence of any material change in the issues or testimony that decision must be regarded as the law of the case.
It is claimed that the evidence on the last trial does present a somewhat different case in that on the former trial there was testimony tending to show that the general manager and foreman of the appellant's shops had express knowledge of the peculiar dangers attending work of this kind, while the present record discloses no such showing. The duty to warn and instruct an inexperienced employe, the nature of whose work exposes him to peculiar or obscure dangers, which, as a person of ordinary intelligence and prudence, he cannot be held to discover and guard against, is one of positive obligation upon the master, and he cannot escape such obligation upon the plea that he was himself ignorant of such danger. The law will hold him to have known that which the exercise of reasonable care and caution would have brought to his attention. This is especially true as to those latent dangers which experience has shown to attend or surround any particular line of work or employment. The manufacturer who establishes workshops, and goes into the labor market for employes, impliedly represents that he will perform all the obligations which the law imposes on the master in his relation with his servants, and among these is the obligation to instruct and warn the young or the inexperienced servant concerning dangers, not obvious to ordinary inspection, to which the nature of the work to be done will expose him. Wilder v. Cereal Co., 130 Iowa 263, 104 N.W. 434; Norfolk B. S. Co. v. Hight, 56 Neb. 162 (76 N.W. 566); Anderson v. Morrison, 22 Minn. 274; U. P. R. R. Co. v. Fort, 84 U.S. 553, 17 Wall. (U. S.) 553 (21 L.Ed. 739); Ingerman v. Moore, 90 Cal. 410 (27 P. 306, 25 Am. St. Rep. 138); Jones v. Florence Min. Co., 66 Wis. 268 (28 N.W. 207, 57 Am. Rep. 269), and cases cited in 20 Am. & Eng. Encyc. Law (2d Ed.) 97, note 6.
This is not a case where the latent danger was not naturally incident to the employment, nor did it arise from the fault or negligence of third persons. In all such cases it is obviously just that the master should not be held liable until the danger has been brought to his attention or until in the exercise of reasonable care and oversight of the business he ought to have discovered it. The danger in the present instance, so far as appears, did not arise from any defect in the machinery or tools employed, but was inherent in the work of cutting hard steel. The testimony was abundant that the flying of flakes or splinters of steel in such operations is well known to experienced workmen, and that the fragments are sent with such force and such swiftness as to be a source of danger from which the workmen are wont to protect their eyes by wearing a visor of some kind, and we find no error in the submission of this feature of the case to the jury.
II. Dr Getz, the physician who treated the plaintiff's injury, being examined as a witness in his behalf, was asked, among other things: "State whether or not the eye was likely to become diseased on account of the condition it was left in by the injury, at any time while it remains in the socket?" An objection that the question was "incompetent, immaterial, and irrelevant, not a hypothetical question or founded on facts" was overruled, and the witness answered, Counsel insists that this ruling is in violation of the well-settled rule which excludes medical testimony of merely possible or speculative results of the present condition of an injured party. The rule, as generally applied, may be conceded to be as claimed by the appellant, but we are clear that the question asked this witness was not open to the objection made to it. It is too well settled to require citation of authorities that where an injury negligently occasioned is permanent or, if not permanent, recovery is not complete at the time of the trial, the injured party is entitled to damages, already accrued, and such other damages, also, as the evidence shows him reasonably certain...
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