Woolf v. Nauman Co.

• Decision Date: 06 June 1905
• Parties: WOOLF v. NAUMAN CO.
• Court: Iowa Supreme Court

128 Iowa 261

103 N.W. 785

WOOLF

v.NAUMAN CO.

Supreme Court of Iowa.

June 6, 1905.

Appeal from District Court, Blackhawk County; A. S. Blair, Judge.

Action at law to recover damages for the death of plaintiff's minor son, alleged to have been caused by the defendant's negligence. Judgment for plaintiff, and defendant appeals. Affirmed.Mullan & Pickett, for appellant.

Boies & Boies, for appellee.

WEAVER, J.

The defendant corporation is the proprietor of a mill or factory at Waterloo, Iowa, in which doors and certain other building materials are made or prepared for the trade. Among the employés in its service on September 12, 1902, was plaintiff's son Loren Woolf, then about 14 years of age. The boy being engaged in using or operating a circular saw cutting boards into suitable sizes for door panels, one of the boards was in some manner caught upon the back part of the saw and thrown forward with great violence against his person, inflicting an injury from which, a day or two later, death ensued. The defendant was charged with negligence in permitting said Loren Woolf to engage in such dangerous work, in failing to provide him a safe place to work, in providing unsuitable and improper tools and appliances for the work being done, and in failing to properly guard or shield the saw to prevent accidents of the kind from which the boy received his fatal injury. The defendant denies all charges of negligence, and alleges that the deceased contributed to his injury by his own negligence, and further pleads that he voluntarily engaged in the defendant's service with full knowledge and appreciation of all the matters and things charged as negligence on its part, and thereby assumed the risk of injury. We will consider the questions raised by the appellant in the order of their statement in the brief of counsel.

1. It is first contended that the deceased lad was guilty of contributory negligence, and therefore plaintiff is not entitled to a verdict. While there was testimony from which a finding of negligence on part of the deceased could be upheld, we are very clear that under the record as a whole the question was one for the jury. The age of the boy was such that we cannot, as a matter of law, hold him to the exercise of the judgment or caution which might well be expected of one of mature years. It is also shown that he had not been accustomed to or previously employed in this particular service. Moreover, at the moment of the injury, he was not being observed by any witness, and the manner in which the board came in contact with the saw, and the agency, if any, of the deceased in bringing it about, are matters of which no witness is able to speak of his own knowledge. Under such circumstances there is a presumption of due care on part of the deceased, which the jury was entitled to consider. Reynolds v. Keokuk, 72 Iowa, 372, 34 N. W. 167;Hopkinson v. Knapp, 92 Iowa, 328, 60 N. W. 653;Baker v. R. R., 95 Iowa, 171, 63 N. W. 677;Dalton v. R. R., 104 Iowa, 26, 73 N. W. 349;Mynning v. R. R., 64 Mich. 93, 31 N. W. 147, 8 Am. St. Rep. 804;McBride v. R. R., 19 Or. 64, 23 Pac. 814;Hendrickson v. R. R., 49 Minn. 245, 51 N. W. 1044, 16 L. R. A. 261, 32 Am. St. Rep. 540;Cassidy v. Angell, 12 R. I. 447, 34 Am. Rep. 690;Johnson v. R. R., 20 N. Y. 65, 75 Am. Dec. 375; R. R. Co. v. Landrigan, 191 U. S. 474, 24 Sup. Ct. 137, 48 L. Ed. 262. It was for the jury to consider the nature of the work in which the boy was engaged, his age and experience, the obviousness or otherwise of the danger, and all the other circumstances disclosed concerning the accident, and the way in which it appears to have been brought about; and with the finding that he was exercising such degree of care for his own safety as could reasonably be required at his hands we are not disposed to interfere.

2. Considerable evidence was admitted upon trial bearing upon the question whether reasonable care on part of the defendant required the saw with which deceased was at work to be hooded or otherwise guarded to avoid injury to those working about it. Appellant takes the position that, even if this question be found against it, the defect or omission was a fact open and obvious to the most casual inspection, and that the deceased, by voluntarily remaining in such employment, assumed the risk of injury. Counsel have cited us to many cases holding that the mere fact that the injured employé is a minor does not prevent the application of the rules as to assumption of risk as against a demand on his part for the recovery of damages. For the purposes of the case this contention may be admitted, but such admission is not decisive of the appeal. “The doctrine of the assumption of risk involves two elements--knowledge of the defect, and an appreciation of the danger.” Stomne v. Hanford Produce Co., 108 Iowa, 140, 78 N. W. 841, and cases there cited. We may take it for granted that deceased knew the saw was not provided with a hood or guard, but whether he realized or appreciated the danger, if any, from such an accident as that from which he suffered is not so well established as to deprive it of its quality or character as a jury question. In making this inquiry, as in the matter of contributory negligence, the age and experience of the injured are entitled to consideration. Shebeck v. Cracker Co., 120 Iowa, 418, 94 N. W. 930;Newbury v. Mfg. Co., 100 Iowa, 455, 69 N. W. 743, 62 Am. St. Rep. 582;Sachau v. Milner, 123 Iowa, 387, 98 N. W. 900. Had the boy brought his hand in contact with the saw, and thereby been maimed, there might have been some basis of reason for insisting that the danger of such injury was so clear and obvious, even to the inexperienced comprehension, that he should be held chargeable with negligence or with assumption of such risk as a matter of law; but the danger that a board happening to fall or strike upon the rear of the saw would be caught and thrown upward and forward with death-dealing force is a much less obvious peril, one which might well require some degree of experience, even in an adult, to fully appreciate. Hanson v. Mfg. Co. (Mass.) 38 N. E. 363;Chopin v. Paper Co., 83 Wis. 192, 53 N. W. 452;Kucera v. Lumber Co. (Wis.) 65 N. W. 374. There was no error of which defendant can complain in submitting the question of assumption of risk to the jury.

3. By an act of the Legislature (Laws 29th Gen. Assem. p. 107, c. 149), commonly known as the “Factory Act,” certain duties are imposed upon employers looking to the health, comfort, and safety of employés working with or about dangerous machinery. Among other things, it is provided in section 2 (page 108) of said act that: “All saws, planers, cogs, gearing, belting, shafting, set screws and machinery of every description therein, shall be properly guarded. No person under sixteen years of age, and no female under eighteen years of age, shall be permitted or directed to clean machinery while in motion. Children under sixteen years of age, shall not be permitted to operate or assist in operating dangerous machinery of any kind.” Section 4 of said chapter makes the following provisions concerning its enforcement: “It shall be the duty of the commissioners of the bureau of labor of the state, and the mayor, and chief of police of every city or town, to enforce the provisions of the foregoing sections. Any person,...