Wilder v. Great W. Cereal Co.

• Decision Date: 19 November 1906
• Parties: WILDER v. GREAT WESTERN CEREAL CO.
• Court: Iowa Supreme Court

134 Iowa 451

109 N.W. 789

WILDER

v.GREAT WESTERN CEREAL CO.

Supreme Court of Iowa.

Nov. 19, 1906.

Appeal from District Court, Webster County; W. D. Evans, Judge.

Action at law to recover damages for personal injuries received by plaintiff resulting from his being thrown from the ladder of a pile driver operated by defendant, which, it is claimed, was insecurely fastened. Defendant filed a general denial and pleaded assumption of risk by plaintiff. It also pleaded that the negligence, if any, was that of a fellow servant, for which defendant was not responsible. Upon trial to a jury a verdict was returned for plaintiff in the sum of $2,000, which, upon order of the district court, was reduced by a remittitur to the sum of $1,850, for which amount judgment was rendered, and defendant appeals. Affirmed.Ryan, Ryan & Ryan, for appellant.

Healy Bros. & Kelleher, for appellee.

DEEMER, J.

Defendant is a corporation engaged in the manufacture of meals. It has a plant at Ft. Dodge, which is in charge of various superintendents and foremen. Prior to the day when the accident occurred, plaintiff was engaged in work for defendant as a general roustabout. A Mr. Butts employed him, and one Pearson pointed out the kind of work he was to do. At the time of his employment and when he received his injuries he was 19 years of age. On a Saturday night he was asked by Butts to help one Picord drive piles on the next Sunday, and, pursuant to request, reported for duty on that day. When he arrived the pile driver had already been set, and plaintiff was first engaged in sharpening piles and in moving the driver along on skids. From the uprights, through which the hammer played, was a ladder extending obliquely from toward the top down to the base of the appliance and at the top of these uprights, there was a trip which released the hammer when drawn up. For some reason the superintendent, Picord, in charge of the work, was having the hammer released before it reached the regular trip and he had a man upon the ladder with a crowbar to trip or release the hammer before it reached the top of the uprights. Soon after plaintiff came to work he was directed by the superintendent to relieve the man upon the ladder, to take the crowbar and to release the hammer as directed. Plaintiff went to the top round of the ladder and when the second pile was being driven, Picord, the superintendent, said to plaintiff, “Give her a good strike,” which meant that he should allow the hammer to go up as far as possible before setting it free or “pinching it off” as it is called. When this order was given the horses which were drawing the hammer up with a rope and pulley, were driven farther away from the base of the pile driver than usual, and as they were so driven, the pile driver jarred and skipped in some way and the top tipped over toward the south in the direction of the horses, and, as plaintiff released the hammer, it jerked the upright back to the north and threw plaintiff from his position on the ladder to the ground, resulting in the fracture of one of his limbs. It is claimed that the pile driver was not properly stayed, lashed, and fastened at the bottom, and that it was not sufficiently guyed at the top. Plaintiff testified that he had worked upon this driver three or four days before this accident, and that he did not know how it should have been erected and fastened. The negligence charged is in defendant's failure to furnish plaintiff a safe place to work, in that the appliance was not properly lashed or attached to stakes or other fastenings, and that there was an insufficient number of guy ropes, and that those in use were not properly fastened.

It does not appear that plaintiff had anything to do with procuring the pile driver, or with setting or caring for the same. His work was in the operation of the machine after it had been placed in position and with the piles which were being driven. Picord was superintending the operation of the pile driver, and was at the head of defendant's construction work. He was directed by one of defendant's superintendents to get the pile driver at the Chicago, Rock Island & Pacific Railroad yard in Ft. Dodge, to set it up and operate it, and to do everything that was proper in the setting up of the machine, and this Picord said he attempted to do. The appliance had but three guy ropes, and it was not lashed or fastened at the bottom. The reason given by Picord for not fastening it there was that it was not customary, and that he did not deem it necessary to do so, and that, if he had thought it necessary, he would have done so. At any rate, what is called the “mudsill” was not lashed down, and the jury was justified in finding that the accident occurred by reason of the failure of defendant's superintendent or foreman to fasten it down. The rope which drew the hammer up through the uprights ran through a pulley at the top, thence passed down the uprights under the ladder to what is called the “southwest corner” of the pile driver, where it passed through another pulley, and was then so arranged that horses were hitched thereto, and they, by moving in a southwesterly direction, pulled the hammer to the place where it was to be pinched off. The force thus applied was primarily to the base of the driver and in a southwesterly direction. A jury was justified in finding that the horses, in giving the extra pull, removed the appliance from its foundations and caused it to topple over as plaintiff and other witnesses said it did. There were, as we have said, but three guy ropes, one extending northward from the top of the driver and two to the southward, one southeasterly and the other southwesterly. These ropes were fastened it seems, although there must have been enough play either by reason of their elasticity or otherwise to allow the shifting of the appliance at the top. Picord gave directions as to where the hammer should be pinched off, and gave specific directions at the time the accident occurred, at least the jury was authorized to so find.

We can best consider the main points in the case by here quoting some of the instructions of the trial court which indicate the theory upon which it was tried. They are as follows: “(3) The relation existing between defendant and plaintiff at the time of the injuries complained of was that of master and servant, or employer and employé. Under the law it was the duty of the defendant, in the first instance, to use ordinary and reasonable care to furnish to the plaintiff a reasonably safe place to work, and reasonably safe tools with which to do the work appointed to him to do; that is to say, that the place, tools, and appliances should be reasonably safe when properly used.”

“You are instructed that, under the undisputed evidence in this case, the pile driver in use by the plaintiff and his fellow servants was a reasonably safe tool, and the ladder thereon was a reasonably safe place within the meaning of the law. If it be a fact that the pile driver and the ladder thereon became unsafe by reason of plaintiff's or his fellow servant's use of the same in an improper manner, such fact would not show a failure on defendant's part to perform its duty in the respect above stated. But it was also the duty of defendant to use ordinary and reasonable care to furnish to the plaintiff and his fellow servants, known as the ‘piledriver gang,’ such tools, apparatus, and appliances as were ordinarily and reasonably necessary to enable them to use such pile driver in a proper and reasonably safe manner.

Additional Instruction. In response to your request for further instruction of the question propounded by your foreman, I charge you as follows: That in so far as Picord was engaged in the work of using the pile driver, and the tools and the appliances appurtenant thereto, he was a fellow servant with the plaintiff. If you find, however, from the evidence that he was charged with the duty, in whole or in part, to procure or prepare the pile driver and the tools and appliances ordinarily and reasonably necessary for its proper use, then, to such extent, he was not a fellow servant, but was a vice principal--that is to say, for such purpose, he stood in the place of his principal, the defendant--and, if he was negligent in respect to such duty, the defendant is chargeable with such negligence. For instance, as stated to you in the previous instruction, the defendant was charged with the duty of exercising ordinary care to furnish the tools and appliances that were ordinarily and reasonably necessary for the proper and safe use of the pile driver. Now, if the defendant delegated that duty to Picord, or to any other person, and the duty was not, in fact, performed by the person to whom it was delegated, the failure of such person will be deemed the failure of the defendant, and the neglect of such person the neglect of the defendant; and in such case it is immaterial whether such person was in fact Picord or some other person, but the defendant is not chargeable with Picord's negligence, if any, in so far as he was engaged in the use of such tools and appliances as were actually furnished.”

Before returning to these instructions, some of which are criticised, we shall take up some of the rulings on the admission and rejection of testimony. Plaintiff was permitted to show by various competent witnesses the usual and ordinary method of fastening such pile drivers as the one in question. This is claimed to have been erroneous. The authorities seem to hold such testimony admissible. Anderson v. Railroad, 109 Iowa, 524, 80 N. W. 561;Betts v. Railroad, 92 Iowa, 343, 60 N. W. 623, 26 L. R. A. 248, 54 Am. St. Rep. 558;Austin v. Railroad, 93 Iowa, 239, 61 N. W. 849;Richardson v. Douglas, 100 Iowa, 239, 69 N. W. 530; Lawson Expert and Opinion Evidence (2d Ed.) pp. 74 and 115, and cases cited. Appellant's authorities upon this proposition are not in point. In the one case...