Wheeler v. Sioux Paving Brick Co.
| Decision Date | 02 July 1913 |
| Citation | 142 N.W. 400,162 Iowa 414 |
| Parties | MYRON WHEELER, Appellee, v. SIOUX PAVING BRICK COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.
ACTION for damages for personal injuries sustained by plaintiff while in the employ of defendant. Verdict and judgment for plaintiff from which defendant appeals.-- Affirmed on condition.
Affirmed on condition.
Parker Parrish & Miller and Shull, Farnsworth & Sammis, for appellant.
Wright & Sargent, for appellee.
OPINION
I.
The plaintiff in his petition, in substance, alleges: That he is a resident of Sioux City, that the defendant is an Iowa corporation, and that it is engaged in operating plants at Sioux City, Iowa for the manufacture of brick, tile, and other clay products. That at the times referred to in the petition the plaintiff was in the employ of the defendant at its North Riverside plant, "his particular duties being that of timekeeper for the men, and being about the plant to render general assistance wherever he might see that the same was necessary for the purpose of keeping the men and machinery at work, with a view to avoiding unnecessary delays and loss of time in the general conduct and operation of said manufacturing plant." That while thus engaged on the 29th of May, 1911, plaintiff came in contact with an unprotected and unguarded shafting and set screw used in said plant and kept and maintained and operated therein as a part of the machinery for the manufacture of brick, and as a result thereof the lower portion of plaintiff's left limb was torn, wrenched, and broken so that amputation thereof became necessary, and the plaintiff became permanently disabled by reason of the loss of said limb. That the shafting referred to was used in said plant for the purpose of operating the machinery which cuts the pressed clay on the conveyor into the size of ordinary brick by means of strands of wire operated by machinery connected with the said shaft. That on said date plaintiff had passed over said shaft at the usual, ordinary, and customary place therefor for the purpose of fixing one of said wire strands which had broken. That after fixing the said wire plaintiff started to return over said shafting at the usual, ordinary and customary place. That at the time of said accident there was a collar fastened to said shafting by means of bolts or set screws which projected over and out of the same a distance of about an inch, the ends of said bolts being rough and uneven and wholly unprotected, and said collar and set screws or bolts and shafting all being wholly unprotected and unguarded, contrary to the provisions of the statutes of the state of Iowa. That the defendant was negligent in failing to furnish the plaintiff a safe place to work, and in maintaining an unprotected and unguarded shafting, collar, bolts, or set screws in a negligent and unsafe condition without protecting or guarding the same, all contrary to the provisions of the laws of the state of Iowa.
That immediately south of the shafting, collar, and set screws or bolts referred to there is a narrow railway track on which cars are operated that carry brick from the conveyor to the drying rooms, and as the plaintiff was about to descend in the proper course of his duty on the south side of the shafting referred to, and in the usual, ordinary place therefor, through no fault or negligence of his, his left leg came in contact with one of said unprotected and projecting bolts or set screws which was used for the purpose of holding the collar described and fastening the same in said shafting, and all of which was unguarded and unprotected. That said unguarded and projecting bolt or set screw caught in the leg of plaintiff's trousers, and drew the lower portion of plaintiff's left limb in and about said shafting, tearing the limb a short distance above the ankle almost entirely from plaintiff's body, necessitating the amputation of said limb. That in consequence plaintiff has been obliged to submit to three operations at a point immediately below the knee. Plaintiff avers that he was free from negligence contributing to said accident.
In its answer defendant states: That, when plaintiff sought employment from defendant some sixty days prior to the accident, he represented to defendant that he was an experienced machinist, accustomed to working about and with machinery and with men working at plants using various kinds of machinery. That on the strength of such representations plaintiff was placed in charge of the rooms containing the machinery, and especially the room or shed where he was injured. That his duties consisted of overseeing said room and machinery, and particularly the machinery therein, and of seeing that the machinery was kept in proper condition and order. That, if any machinery or set screws or other parts of shafting were left unguarded in a condition dangerous to persons working about them, it was plaintiff's fault alone, and not the fault of any one else, and that the matter of covering and guarding the machinery complained of in plaintiff's petition as causing the accident was a simple matter, and required only a covering of simple material which was at hand and could be had at any time by the plaintiff, and that, if such machinery was unguarded and was unprotected, it was wholly the plaintiff's fault, for which he cannot be heard to complain. Defendant pleads that plaintiff assumed the risk, if any, which caused his injury, and was guilty of contributory negligence.
II. The charge of negligence submitted by the trial court to the jury was the alleged failure of the defendant to have a proper guard over the collar on the revolving shaft, by which the set screw and shaft would be covered, and this, with the issues of assumption of risk and contributory negligence, became the subject of inquiry.
There is no controversy over the fact that the set screw on the collar of the revolving shaft was unguarded. Such condition was therefore one which the provisions of Code, Section 4999-a2, requires shall be protected against, by making it the duty of the owner or person in charge of such machinery to keep it properly guarded. A failure to meet such duty is negligence. Kirchoff v. Supply Co., 148 Iowa 508, 123 N.W. 210; Bromberg v. Laundry Co., 134 Iowa 38, 111 N.W. 417.
Stated correctly in its application to this case, the defendant claims that the character of plaintiff's employment and the services he was to render were such that he stood in the place of his principal as to all matters pertaining to the care of the machinery, and, occupying that position and being charged with such duty, he should not be permitted to recover for dangerous conditions which it was his duty to keep safe. It was left to the jury to determine as a question of fact the nature of plaintiff's employment and whether such duty rested upon him. It is claimed by the defendant that the evidence was such that the trial court erred in not directing a verdict for the defendant on this ground; and also that, because of the proof as to that relation between plaintiff and defendant and his resulting duty, the verdict is without support in the law.
The question thus presented requires a somewhat extended reference to the testimony. Prior to his coming to Sioux City, the plaintiff had been in various places as a worker about stationary engines. He had been employed by the American Smelting & Refining Company in Utah, starting as oiler and assistant engineer, having two engines under his charge, and in the absence of the engineer he had charge of the whole plant. In the latter days of his employment by that company he was first assistant engineer. He was without practical experience as to the work in a brick-making plant. These facts are given as bearing upon his knowledge of machinery and the nature of his employment by the defendant, which had been arranged by plaintiff's half-brother, and upon which plaintiff came from the west to Sioux City. Upon his arrival he was introduced to Mr. Terrell, who he was told was foreman of the entire plant, and also that each department had a foreman of its own. Mr. Terrell's son had supervision of that part of the plant that made the brick, and a Mr. Mosler had supervision of them when taken to the kiln. Plaintiff testified that, when he came to the plant, the younger Terrell was let go, and plaintiff was expected to take his place as soon as he got acquainted with the work, having been employed for that purpose. His particular employment was to keep the time of the men, an account of the brick that were made, make report of these matters, and, as stated by him, to be as useful as he could around the plant, but he testified that he had no authority over the men. At times when it was needed he repaired the track and fixed the tunnels.
Defendant further testified in substance as follows:
I went to work for the Paving Brick Company April 10th. The accident occurred May 29th. I worked all the time between these dates. Every working day. I was in and about this room each day I worked. I became familiar to a certain extent during the weeks I worked there with the conditions about the room in which I worked. I knew it was a part of my duty to know the general condition of the track and the machinery, and of the tools that were in use there. This collar I have spoken of was uncovered at the time I went to work. I saw it many times a day. I did not observe before the accident whether or not the bolts that were used in this collar projected beyond the burrs. I was within a few inches or a few feet of this collar every day many times a day, and its condition and location were...
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