Vohs v. A.E. Shorthill Co.
| Decision Date | 13 July 1904 |
| Citation | 100 N.W. 495,124 Iowa 471 |
| Parties | C. M. VOHS v. A. E. SHORTHILL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--HON. G. W. BURNHAM, Judge.
ACTION to recover for personal injuries received by plaintiff while an employe in defendant's foundry and machine shop. Verdict and judgment for plaintiff. Defendant appeals.
Reversed.
J. L Carney, for appellant.
Boardman Aldrich & Lawrence and F. E. Northup, for appellee.
The evidence tends to show the following facts: The plaintiff, without previous experience in working about a foundry or machine shop, or any place of a similar character, entered the employ of defendant, and was directed by the general manager, Speers, to put himself under the charge and direction of one Johnson, the superintendent of one branch of defendant's business. Johnson kept plaintiff employed for four days in cutting rivets for the purpose of separating old bridge beams, and then, on the representation of one Slingman, who had charge of the blacksmith shop, that a man was needed there to hold steel rails while they were being cut into short lengths with a cold-chisel, Johnson told the plaintiff to go to the blacksmith shop and help in that work. The steel rail on which the blacksmith who held the cold-chisel and managed the rail, and his assistant, who swung the sledge, were working, was resting with one end, at the place where it was marked to be cut off, on the anvil, and with the other on a carrier some distance from the anvil; and plaintiff assisted in handling it by taking hold of it between the carrier and the anvil, and turning it or moving it as Slingman directed. At first the plaintiff stood about eight feet away from the anvil, but soon afterward Johnson came in, and directed plaintiff how to hold the rail; placing him about three feet from the anvil. After plaintiff had been employed in this way for about an hour, a fragment or a sliver of steel struck him in the left eye, causing an injury which resulted in the loss of sight in that eye, and the impairment of the efficiency of the other eye.
The court submitted to the jury three alleged grounds of negligence on the part of defendant: First, in not providing plaintiff a safe place to work; second, in not warning plaintiff of the danger, and instructing him how the same could be avoided; and, third, in ordering plaintiff into a position of danger without warning or cautioning him concerning the danger, knowing plaintiff to be inexperienced.
The first contention of appellant is that there is no evidence to support any one of these alleged grounds of negligence, and that the court, on defendant's motion, should have directed a verdict for the defendant, or, on the motion for a new trial, should have set aside the verdict as without support in the evidence. There seems to be no evidence that the defendant was negligent in failing to provide the plaintiff with a safe place to work. There was no failure to furnish the usual appliances for such work, and no omission shown to furnish any safeguards such as were usual or reasonably necessary to enable the plaintiff to carry on the work to which he was assigned with as great safety as was practicable, consistently with the nature of the work to be done. But the principal controversy is as to whether there was any peculiar danger incident to the employment, and in the place where plaintiff was directed to work, which plaintiff, as an inexperienced workman, did not know, or might not reasonably have known or appreciated, and of which it was the duty of Speers or Johnson to apprise him, in order that he might avoid it. Witnesses who were familiar with similar work testified on behalf of plaintiff that there was danger of bits of steel flying from the rail or from the chisel or the sledge, and that they were likely to fly with such swiftness that they were invisible, and were calculated to inflict severe injury on the eyes of a person within range, unless such person took care to guard against the danger by wearing a hood, and inclining the head as the blow was struck with the sledge, so that the eyes could be protected. It appears to us that the precaution to be taken was not unreasonable, nor inconsistent with the prosecution of the work in which plaintiff was engaged, and the danger, we think, was one which an inexperienced workman would not fully appreciate; and we reach the conclusion that the failure of Speers and Johnson to warn the plaintiff as to this danger, and instruct him as to the method of lessening or avoiding it, might constitute negligence on the part of the defendant, and, under the evidence, was a proper matter to submit to the jury, as tending to show liability on the part of defendant. It would not be profitable to discuss the numerous cases cited on each side with reference to the duty of the employer, on the one hand, to warn the employe against dangers incident to the employment, of which he had no knowledge or which he could not appreciate, and, on the other hand, to the effect that the employe is bound to look out for and protect himself against such dangers as he knows or may, in the exercise of reasonable care, understand and appreciate, as incident to the employment. The rules of law to be applied in such cases are reasonably well settled by the decisions of this court. See Newbury v. Getchel & Martin Lumber Co., 100 Iowa 441, 69 N.W. 743; Yeager v. Burlington, C. R. & N. R. Co., 93 Iowa 1, 61 N.W. 215; McCarthy v. Mulgrew, 107 Iowa 76, 77 N.W. 527. And see, also, Mather v. Rillston, 156 U.S. 391 (15 S.Ct. 464, 39 L.Ed. 464). The pivotal question in applying these rules to the present case is as to whether the danger from flying slivers or particles of steel was one which plaintiff, as a reasonable person, though not experienced in the particular work, should have understood and appreciated. We think that the evidence introduced with reference to the nature of this danger was such as to carry the question to the jury. It cannot be said, as a matter of law, that plaintiff should, as a reasonable man, have known that, in cutting a steel rail with a cold-chisel, particles of steel, flying so swiftly as to be invisible, were likely to be thrown so as to injure the eyes of persons standing near, unless some precaution should be taken to protect the eyes against them.
Similar considerations apply to the question of assumption of risk which is raised on behalf of appellant. An employe does not assume the risk of a danger of which he has no knowledge, or which, as a reasonably prudent person, he is not bound to anticipate, or the...
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