Warner v. Spalding & Kearns
| Decision Date | 14 May 1919 |
| Docket Number | 30825 |
| Citation | 172 N.W. 263,186 Iowa 137 |
| Parties | WALTER O. WARNER, Appellant, v. SPALDING & KEARNS et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Jefferson District Court.--C. W. VERMILION, Judge.
ACTION to recover for personal injuries alleged to have been sustained while one Walter O. Warner was in the employ of the defendant. A verdict was directed for the defendant, and plaintiff appeals.--Reversed and remanded.
Reversed and remanded.
Ralph H. Munro, for appellant.
Leggett & McKemey, for appellees.
The defendants are contractors and builders, and had contracted and were preparing to lay a concrete floor. The plaintiff was employed in this work as a helper, and was under the direction of a foreman. Just prior to the time of the injury, the foreman directed plaintiff to assist other employees in clearing away and carrying off old boards and other rubbish lying on the floor. This was required, to prepare for laying said cement floor. Upon this direction, the plaintiff and other employees engaged in carrying away said boards and rubbish. While they were so engaged, they lifted the rear end of an old door, lying flat on the floor, and having the appearance of having been used as a mortar board. A fellow employee lifted the front end, and, when all stepped on with this door, plaintiff stepped directly into an old well concealed beneath said door. Neither plaintiff, his fellow employees, nor the defendants had any actual knowledge that there was such an opening beneath that door. Neither had any reason to anticipate the existence of the said hidden opening, and, of course, plaintiff was never warned of its existence. This was the evidence when plaintiff closed his case. Thereupon, the defendants moved for a directed verdict, on the ground that the evidence fails to disclose any negligence or want of reasonable care on their part, or that the injury was due to any negligence on their part; that it shows plaintiff had every opportunity to investigate and know whether or not there was hidden danger beneath said door; that, by the use of ordinary care and diligence on his part, he could have discovered and avoided his injury; that, on the whole evidence, no cause has been established under the claims of the petition; and, further, that the evidence shows affirmatively plaintiff was guilty of contributory negligence. This motion was sustained. The record indicates that this was done on two grounds: First, that defendants did not own the premises, and therefore had no greater duty to inspect the premises or make inquiry concerning hidden dangers than had the plaintiff; second, that the premises were safe until they were made unsafe by the work done by plaintiff, i. e., that the danger which caused the injury to plaintiff was created by the work he himself was doing.
We are clear that the motion should not have been sustained on the reasoning last stated. It is true the rule that the master must furnish a safe place to work has no application where the work itself creates the danger which results in injury to the servant. The rule is a sound one, but is inapplicable here. It applies where, say, the servant engages in tearing down a wall, and is injured by the bricks that his labor precipitates upon him. But we fail to see how this rule governs the picking up of boards from a floor as a preparation for laying cement upon that floor.
Neither do we find a distinction persuasive which rests upon the fact that a master builder employed his servants on or in a building owned by someone other than the master. See Clark v. Union I. & F. Co., 234 Mo. 436 (137 S.W. 577). Assume there was a duty to inspect the premises in question, or to ascertain whether hidden dangers were present in the place in which the servant was directed to work, and these duties are precisely the same, whether the master owns the place in which the servant works, or labors in carrying out a contract made by the master to do work on property owned by another. Eliminating, for the present, the question of contributory negligence, and it can fairly be said that the trial court sustained the motion for an instructed verdict in accordance with a statement made in response to a contention by the attorney for the plaintiff, that defendant should have first gone into the building and turned over the refuse lying there, in order to determine that no hazard was lurking, the response made by the trial judge being, "That is just what the plaintiff and the other helpers were employed to do." The position taken by this response seems to eliminate whether the jury could find the master was negligent, all inquiry into whether there was a relative duty to inspect, inquiry into whether, as between employer and employee, the duty to inspect rested upon the latter, and whether it may be said, as matter of law, that the duty to furnish a safe place wherein to work is discharged by showing that the master had no actual knowledge that the place wherein he had directed the servant to work was unsafe by reason of latent danger. The one fact that the master, through the foreman, had directed this plaintiff to do the work, would seem, of itself, to dispose of the claim that the duty to inspect was that of the servant, and not that of the master. As to any direction concerning work involved in the employment, the employee was under duty promptly to obey the directions of his superior, placed there by the defendant to direct him. See Hamm v. Bettendorf Axle Co., 147 Iowa 681, 125 N.W. 186; McGuire v. Waterloo & C. F. U. M. Co., 137 Iowa 447, 113 N.W. 850. Being directed to clear this floor, he was not required, and was not authorized, to make a preliminary search to ascertain whether he might in safety obey the directions of that superior. See Cincinnati, I., St. L. & C. R. Co. v. Roesch, 126 Ind. 445 (26 N.E. 171). Of course, the final conclusion depends upon whether the master was bound to make reasonable effort to ascertain that the place wherein the work was to be done was a safe one. If that was his duty, it was not the duty of the servant, even if it be assumed he was authorized to make such preliminary investigation. He had a right to assume that the master had ascertained that the working place was safe. The cases of Jacobson v. United States Gypsum Co., 144 Iowa 1, 120 N.W. 651, and Hardy v. Chicago, R. I. & P. R. Co., 149 Iowa 41, 127 N.W. 1093, Herr v. Green, 156 Iowa 532, 136 N.W. 511, Aga v. Harbach, 140 Iowa 606, 117 N.W. 669, Kroeger v. Marsh Bridge Co., 138 Iowa 376, 116 N.W. 125, and Winslow v. Commercial Bldg. Co., 147 Iowa 238, 124 N.W. 320, when rightly analyzed, hold nothing to the contrary. Neither can we agree with the contention of the appellee that plaintiff had a better opportunity for knowing the well was under this door than the defendants had. Be that as it may, an assumption that the servant had a right to investigate is quite immaterial, if it was the duty of the employer to ascertain that no latent dangers lurked where he had directed his servant to labor. It is quite apparent, then, that at this point the controlling question is whether the fact that the cause of the injury was latent and hidden, and the further fact that the defendants had no actual knowledge that such dangers existed, as matter of law bar recovery by the plaintiff.
"Where a danger is as open and obvious to the servant as to the master, or where the servant has better means of knowledge than the master, he will be charged with such negligence as to bar a recovery."
That does not touch what is to be the rule where neither has the better means, or where the danger is obvious to neither. The text declares further that:
"Where it does not appear that the master knew, or with ordinary care ought to have known, of the defect which caused the injury, and it does appear that the servant had equal means with the master of ascertaining its existence, the servant cannot recover."
If this may be construed to shift the ascertainment of latent and hidden dangers from master to servant, we cannot endorse it. It is hornbook law that the master is under duty to furnish the employee a reasonably safe working place. Winslow v. Commercial Bldg. Co., 147 Iowa 238, 124 N.W. 320. That there is such an obligation of necessity carries with it a duty to ascertain that the place is safe. Since that is the duty of the employer, he may not escape liability by an insistence that the employee may not recover unless he performs the duty placed upon the employer. The master is bound to take reasonable care to have the place in which he directs his servant to work reasonably safe for the doing of the work, and free from latent and concealed dangers. Leuteritz v. Ice C. & S. Co., 82 N.J.L. 251 (83 A. 176). This case holds that, in the absence of knowledge to the contrary, a servant has the right to assume that his master has exercised due care and diligence to fulfill the obligations imposed upon him by law, and, therefore, does not assume the risk consequent upon the failure of the master to discharge his duty. That duty is to take reasonable care to have the place in which he directs the servant to work reasonably safe for the doing of the work, and free from latent and concealed dangers. It is said in Cincinnati, I., St. L. & C. R. Co. v. Roesch, 126 Ind. 445 (26 N.E. 171):
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