Wilder v. Great W. Cereal Co.

• Decision Date: 12 July 1905
• Citation: 104 N.W. 434,130 Iowa 263
• Parties: WILDER v. GREAT WESTERN CEREAL CO.
• Court: Iowa Supreme Court

130 Iowa 263

104 N.W. 434

WILDER

v.GREAT WESTERN CEREAL CO.

Supreme Court of Iowa.

July 12, 1905.

Appeal from District Court, Webster County; J. R. Whitaker, Judge.

Action for damages resulted in a judgment for the plaintiff. The defendant appeals. Affirmed.Ryan, Ryan & Ryan, for appellant.

Healy Bros. & Kelleher, for appellee.

LADD, J.

The defendant operated an oat meal mill at Ft. Dodge, and the plaintiff, a boy of 19 years, had his hand caught in one of its machines in September, 1902, and so injured that amputation was necessary. Prior to his employment by defendant he had had no experience with machinery other than that used on the farm. From November, 1901, until the last of the following May, except one month, he worked for defendant as a roustabout; that is, helping load and unload cars, scooping coal, filling and trucking sacks, moving machinery, and the like. Beginning in July, 1902, he acted as doorkeeper on the first floor for six weeks; then for a month carried water for the men on all the six floors; after that swept floors and cleaned separators or sieves on the upper three floors for a short time. He was then transferred to the second and third floors, where, for a couple of days, his work was about the same, and was then shown by the superintendent how to oil a heated box over a journal to one of the rolling machines. The superintendent also instructed him to “unchoke” the feeder to this machine when it clogged up with groats (oats with hulls off). This machine need not be described farther than to say that it contained seven set of rollers, each about 10 inches in diameter, and that the machinery was housed in wooden covering about 9 feet high. At the front there was a lid, 6 or 7 inches wide and 22 inches long, which opened on hinges downward. The rolls nearest the lid were about 14 or 16 inches back, turned toward each other, and on the day in question were set three-eighths or seven-sixteenths of an inch apart. Oats were not being rolled, but groats were running through the machine as spouting, to be sacked for the shipment. The superintendent illustrated to plaintiff by moving a stick or piece of iron over or between the rollers, and according to plaintiff, said: “ ‘This chokes up down here. You want to unchoke it. The dough balls accumulate, and you want to let the grain pass there. You want to mash them, and use a stick, and not your hand.’ He made a movement while he was saying this. He just did that way with his hand with the stick in it--just into the door when he opened it that way. He moved his hand that way up and down. After he told me that, he closed the shutter and walked away.” The superintendent testified: “I told him that sometimes the dust would gather a little bit in between the rolls, and it would retard the flow of groats, and showed him how to remove the dust, and also told him to be very careful not to get his hand in there, and took a piece of sheet iron and showed him just exactly how to run the sheet iron along horizontally between the rolls so there would be no danger of getting his hand in, but told him to keep his hand out of there, because if he did get it in between the rolls it would take it off. The shutter was open at the machine when I gave Wilder instructions. We don't keep it shut when we run groats. The implement we had at the time I instructed Wilder was a sheet iron. Sometimes we used a hoop iron. I used to use a prepared hoop iron similar to this, so he could take it and run it right in between the rolls. I furnished Mr. Wilder an implement of that kind--a strip of tin or sheet iron.” The plaintiff denied having been told what kind of an instrument other than a stick to use, and testified that at about 2 o'clock p. m. he noticed the closed lid bulging out, and opened it; that the inside was full of groats; and that he picked a stick about a half-inch in diameter from the floor, and proceeded to crush the “dough balls” and unclog the feeder. He had been at this but a few minutes when the stick was caught between the rolls and his hand drawn in and injured as stated. The claim for damages resulting therefrom is based on two grounds of negligence; i. e., failure to warn plaintiff of the dangers incident to doing the work, and omission to furnish him with a suitable implement with which to do it. These were put in issue by defendant, and it pleaded that the risk had been assumed.

1. Taking up the allegations of negligence separately, appellant insists that the evidence was insufficient to support the verdict. That the use of a stick thicker than the distance between the rolls was dangerous, and that before permitting its use an inexperienced person should be cautioned of the danger that it might be caught between the rolls and the hand drawn in, were matters conclusively established by the evidence. Whether plaintiff was furnished a strip of iron about 1/32 of an inch thick, 7/8 of an inch wide, and about a foot long, like that customarily used, or was simply told to make use of a stick, was in dispute, and the finding of the jury necessarily conclusive. But it is said that in selecting the stick the plaintiff acted for himself, independent of defendant, and for this reason the latter is not chargeable with negligence in not supplying proper tools. This might be so had the superintendent given no directions. According to plaintiff's testimony, he was instructed merely to use a stick, and he selected one like that the superintendent had. If this was so, he was not acting independently, but under instructions as to what tool to use in unclogging the feeder. A particular stick was not pointed out, nor was a particular one furnished; but from what was said, according to his version of the conversation, he was justified in inferring that he was to take any stick similar to that used by the superintendent. A stick is defined by Webster as “a small shoot, branch, separated, as by cutting, from a tree or shrub; * * * any long and comparatively slender piece of wood, whether in natural form or shaped with tools; a rod; a wand; a staff.” Wood is ordinarily meant, and one would not infer, save under peculiar circumstances, that by the word “stick” a piece of iron was intended. If plaintiff's testimony be accepted as true--and the jury might have done so--he was directed to make use of a piece of wood. He selected such an instrument, then, as he was instructed to use, and not one of his own choosing. Because of the danger of being caught between the rolls and drawing the hand in, such an instrument was not a suitable appliance for cleaning the rolls, especially by an inexperienced person; and the jury's finding the defendant was negligent in this respect has support in the evidence.

2. The principle is well settled that the duty to warn an inexperienced employé is limited to those dangers which are not open and obvious, or which are not likely to be appreciated in the exercise of ordinary prudence. McCarthy v. Mulgrew, 107 Iowa, 76, 77 N. W. 527;Hanson v. Hammell, 107 Iowa, 171, 77 N. W. 839;Newbury v. Mfg. Co., 100 Iowa, 441, 69 N. W. 743, 62 Am. St. Rep. 582;Yeager v. Ry., 93 Iowa, 1, 61 N. W. 215;Beck v. Mfg. Co., 82 Iowa, 286, 48 N. W. 81. The plaintiff undoubtedly knew there were rolls within the wooden casing or housing, and as he had oiled a hot box over the shaft, about three inches in diameter, of one of these rolls, he must have learned that...