180 Iowa 1 | Iowa | 1917
The machine weighs about three tons. The sumping bar, or angle iron, appears at figure 67 in the cut, and is 8 feet long, with flanges about 4 inches high. It weighs 75 pounds. Its function is to guide the wagon-tongue-looking arrangement in the cut, called the cutter bar. The controller, which it is alleged was out of repair, is shown in the cut under 19. The machine as shown in the cut is in position for sumping. Plaintiff was about to start sumping when he was injured. The cutter bar on the machine is 5y> feet long and 14 inches wide, with a rounded end; around its periphery revolved a continuous cutter chain, to the links or lugs of which were fastened bits or teeth, set at different angles, somewhat like the teeth of a saw. The bits or teeth are about 5 or 6 inches apart. Sumping is driving the cutter bar under the coal, and after that, the cutter bar and saw are run across the room under the coal. Tt is not necessary to use the sumping bar. until the cutter bits are freed from contact with the coal, so that the suav or teeth may get up speed to cut. As soon as this is done, the operator is ready to use the sumping bar and start the machine; then the sumping bar is anchored by jack pipes. At the time plaintiff was hurt, the sumping bar Avas not anchored Avith the jack pipes, but appellee contends that it was anchored to some extent by being placed under the wheel, and by its own weight. The machine was operated by means of a hand controller, which was moved back and forth across a quadrant, on which were eight contacts, the first of which was mechanically
It is alleged by plaintiff that the contacts 2 and 3 had become defective and would not transmit power, and that contact k, while alive, was worn down below the level of the others, partly burned out, out of repair and in a defective condition; that defendant had knowledge of this; that, because of the said defective conditions on the day plaintiff ivas hurt, the controller stuck at the fourth contact so that plaintiff was not able instantly to turn off the power and stop the machine, in consequence of which the cutter bit chain, revolving at high velocity, came in contact with the sumping bar and hurled the same against plaintiff’s right ankle, producing the injuries complained of. The testimony, or some of it, in regard to the defect in the fourth contact, is that there was a depression in the fourth contact; that it was lower than the other contacts, and, as one witness puts it:
“When you pushed the controller from the position in which there was no power to the fourth contact, that part of the controller which was operated by the spring pushing down slid over the two prior contacts before it reached the fourth contact, which was lower; the controller would slip into the little hole on the fourth contact.”
Defendant answered in general denial, and averred that the injuries complained of were due to plaintiff’s own negligence. Appellant’s claim is that the proximate cause
The principal grounds relied upon by appellant for a reversal are the alleged contributory negligence of plaintiff, and the claim that the alleged negligence of defendant was not the proximate cause of the injury. Other errors assigned relate to rulings of the court on admission of evidence. The first two propositions were raised by appellant in different ways in the trial court, by motion, offered instructions and exceptions to instructions given.
It will be necessary to set out a little more fully the testimony bearing upon these questions, which we will now do as briefly as may be. The plaintiff testified that, as he placed the sumping bar under the wheel at the side of the machine, there would be about an inch between the sumping bar and the bed of the machine, and a space between the sumping bar and the bits on the bit chain of about 6 inches. The sumping bar was placed in the position it was in just before plaintiff started to clear the bits and kick the machine back. As stated,' before starting to sump-in, it was necessary to set the machine and clear the bits; clearing the bits was done by setting the machine close enough to the coal so that the forward end’ of the cutter bar would be against or nearly against the coal, the face of which is often left uneven. The operator would then kick back the machine until the bits on the chain at the end of the cutter bar cleared the coal. This kicking back would be done by turning the controller on the first live contact and quickly off again, so that the bit chain would revolve just enough for the bits to strike any protruding coal surface and kick the machine back far enough for the bits to clear. The bits stick out about an inch and a half, and, being cleared one at a time, the kick-back is slight.
Appellant places great stress upon the fact that plain
As before stated, there is testimony from which the jury could have found, although there was a conflict at this point, that the first three contacts were, for several days prior to the accident, out of repair and dead, and that the fourth contact was alive, but worn down as heretofore de- . scribed, partly burned out and out of repair. There is evidence from Avhich the jury could have found that this condition was known to -the defendant, and that plaintiff had requested defendant to repair the controller and the contacts. Plaintiff had used the machine a few days before, but in the meantime had used another machine.
The defendant vigorously denies the alleged defects in the machine, but says that, assuming that they did exist, they were known to the plaintiff. On Monday before the accident which occurred on Thursday, plaintiff was using the same machine, and left it in the entry Monday evening and reported it to be repaired. He says he didn’t know exactly Avhat was the matter, but he reported general ■ trouble Avith the controller. He used machine No. 1 the next morning. At noon Tuesday, he commenced again using machine No. 3, the one he was using when hurt. He says he was told by the machine boss to get it, and says he found it had been Avorked upon in respect to being repaired; that somebody had been Avorking on the machine. He then took the machine and moved it to the place where he was
It is appellee’s contention that, under these circumstances, and in view of the plaintiff’s previous experience with the machine, he had reason to believe that, though it was out of repair, he could do the work with it the same as he had before, and that the danger was not imminent.
We have not gone into the testimony as fully as have counsel in the argument, but we think the main facts have been stated substantially in accordance with the testimony,— at least plaintiff’s testimony. As said, there was a conflict at some points, but this, of course, was for the determination of the jury.
It is contended by appellant that the nonexistence of a legal connection between the negligence' and the injury is predicable whenever, for aught that appears, the accident might have happened even if the defects in question had not existed, or if the precautions which were omitted had been taken; and that the question is whether it was a cause such that, had it not existed, the injury would not have taken place (citing cases) ; and, as stated, the theory is that, because the sumping bar was placed as it was by
Whether a defect is the proximate cause of an injury is ordinarily a question for the jury, and we conclude that, under the record in this case, it was a question for the jury whether the accident would have happened if plaintiff could have used the first live contact, and it was a question for the jury to determine whether the accident would have happened with the controller even on the fourth contact, if plaintiff could have gotten the power off quickly enough. The testimony shows, as before stated, that, by using proper care to start the machine on the second contact, the chain would be made to move but a few inches, and this could be done if the fourth contact was used, had plaintiff been able to get the power off quickly enough. There is another suggestion in regard to the placing of the sumping bar under the wheel before starting to clear the bits: when it was not used for that purpose, it should be borne in mind that it was to be used immediately after the machine was started. All these were circumstances to be considered by the jury. Many oases are cited by both parties upon the question of proximate cause, but we think there ’is nothing unusual in the facts or circumstances in the case requiring a review of the many cases on proximate cause.
It is contended by appellee that the sumping bar was not the cause: it was a condition of the accident, an instrumentality and agency within- the danger zone of the moving cause; and that the test of defendant’s liability, as
“It is clear from this recital that the issue was for the jury, and that it might have found, either that moving the lever with the foot; in the contingency in which plaintiff acted when injured, was the usual method, or such as defendant reasonably should have anticipated in guarding the machine. * * Of course, if the foot had not slipped, the guard would not have fallen off; nor would this have happened had plaintiff moved the lever by hand, instead of attempting to do so with his foot. The slipping of the foot, like the attempt to move the lever with it, however, was the bringing of that portion of the plaintiff’s body within the danger zone of defendant’s negligence, and could not have intervened between its. continuing negligence in operating the belt without a proper guard and the plaintiff’s hurt when brought in contact therewith. In other words, the slipping of the foot and consequent pushing of the guard, even though the proximate cause, did not intervene between the negligent operation of the belt and the injury, but, at most, was concurrent therewith, and this would not obviate defendant’s liability” (citing Buehner v. Creamery Package Mfg. Co., 124 Iowa 445; Walrod v. Webster County, 110 Iowa 349, and other cases).
See, also, Balzer v. Warring, (Ind.) 95 N. E. 257.
It is not shown that plaintiff had knowledge that it
Appellee cites a case from Missouri, and says it is the only case where this kind of a machine has been involved, wherein it was said:
“The operator could tell by the hum of the motor the character of the resistance opposed to the cutter and by moving a lever which controlled the power could stop the' machine instantly. * * * Bradley v. Northern Cent. Coal Co., (Mo.) 151 S. W. 180.
“There is a vital difference between knowledge of the extent and character of a danger and knowledge of a defect in which lurks a danger, the extent or imminence of*15 which is not discoverable to the servant by the reasonable use of the opportunities his situation affords.”
Ordinarily, of course, as we have said many times, the question as to whether an injured person is guilty of contributory negligence is a question for the jury, and in this case, the fact that plaintiff’s work with the machine in question was to some extent dangerous, and so known to plaintiff, does not necessarily charge plaintiff with negligence in trying to perform his duties with it. The plaintiff had informed his superiors of the condition of thq machine, and they had directed him to do this work in the manner in which he was doing it, so far as the controller is concerned. This court said, in Steburg v. Vincent Clay Products Co., 173 Iowa 248, 260:
“It requires a very clear case of danger so imminent qr so great that the court will say, as a matter of law, that the servant is chargeable with contributory negligence in doing his work according to the order or instructions of his employer.”
And so, in the instant case, it is our conclusion, without further discussion of the evidence or the authorities, that it was a question for the jury. See, also, Murray v. Swanwood Coal Co., 159 Iowa 1, 7.
*16 “Q. State whether or not, at the time of this accident and prior thereto, it was the custom or usage, in getting ready to sump, to place the sumping bar under the wheel on the machine, and then see whether or not the bits would clear, and then afterwards, when the bits had cleared, to place the jack pipes in position for sumping.” •
The objection was, among others, that a negligent custom would not excuse an act of negligence. The court said:
“First, was there any custom at all in the use of this sumping bar as to its use when this preliminary test was being made? Was there any custom or use regarding the sumping bar? A. Each runner had his own way sometimes. (Same objection.) Court: The answer may stand. Court: How much observation have you made of the operation of this machine in the hands of others ? A. I have worked with nearly all the men down there. You get ideas, pick up ideas from them, and you give them your own ideas, and in this way one person might sump the machine in one way and another person might sump it in another, but practically in all ways the setting of the machine is the same, pull it off the trucks over to the corner, square your machine, . get ready to sump, clear your bits and start with the sumping cut.”
Counsel for plaintiff then renewed the former question as to what was the usual and customary way of getting ready to sump with respect to placing the sumping bar under the wheel, and over objection, witness said:
“A. In getting the machine ready to sump, pull it off the trucks up to the face of the coal and to the corner of the room and square your machine around and sometimes it is necessary to kick your machine back with the bits before you put the sumping bar down; other times you*17 put the sump'ing bar down and kick her hack; clear the machine and get ready to sump; set your jacks.”
Defendant moved to strike out the part of the answer in Italic, and thereupon, counsel for plaintiff stated, in resistance to the motion, that the question is asked for the purpose of showing plaintiff’s freedom from contributory negligence, and that he was in the exercise of ordinary care for his own safety. The trial court, in ruling, was of the opinion that the testimony did not show custom or usage, because each man handled the machine in his own way; and overruled the motion. It is not contended by appellant here, as we understand it, that the testimony did not in fact establish the existence of a negligent custom, but that the evidence was prejudicial, and that it should have been stricken or withdrawn under appellant’s offered instruction. There is other testimony on the question as to Iioav the work was usually done. There is testimony that whether the machine is kicked back with the bits before the sumping bar is down, or whether they put the sumping bar down and then kick her back, as before set out, depends upon the condition at the face of the coal; and there is evidence that the character of the coal, whether hard or otherwise, would have something to do with the extent of the kick-back. This is undisputed, and we do not discover any evidence that the condition of the coal did not demand or permit it to be done in the manner employed by plaintiff. The foreman, although denying the custom, said that the sumping bar is generally set aside until they get ready to sump, and there is other evidence bearing on this. But taking the record together, we think there was no prejudicial error against the defendant. The evidence tended to show the usual way, under certain circumstances, of handling the sumping bar, and was offered for the purpose of showing that plaintiff was not guilty of negligence in adopting the particular course he did in performing his duty. Plaintiff
We think there was no error at this point,
Taking the whole record, we think the evidence was properly admitted. As before stated, the testimony of appellant was emphatic on the important issue as to whether in fact the contacts were defective at all, and in defendant’s testimony, they go beyond the point of proving that the contacts were in good repair at the time of the accident, and attempt to show that the contacts were in good repair after the accident. Counsel for both sides quote from the testimony at some length, but we shall set out only enough to show the situation in a general way. Plaintiff testified that the contacts were out of repair and were defective, and he was in a position to know. He testifies that he had the lid off. Before any questions had been asked or any evidence offered of subsequent repairs, the defendant’s machine boss testified:
“The first two live contacts were working in first class shape, were in reasonably good condition and needed no repair.”
He says also that the second contact did transmit power, and that the third contact transmitted power, and says that he started the machine on the second contact that afternoon, also on the third and fourth, and he denies that plaintiff ever complained to him that the contacts were defective. The mine foreman testifies that the machine operated all right after plaintiff was hurt; that he observed it that afternoon and the next day working, and that nothing had been done to it; that the contacts were all right— they would transmit power; that the second, third and
Appellee’s contention is that this evidence was admissible to prove the actual condition of the contacts at the time of the injury, and as a matter of rebuttal and contradiction of defendant’s witnesses. The record shows that this testimony was offered for the one purpose of showing the actual condition of the defects at the time of the injury, and not for the purpose of showing negligence. Counsel for plaintiff so stated in open court. It is quite clear to us that there is no error at this point, and we shall not take the time to discuss the question at length, but cite the following authorities as bearing upon the point: Scagel v. Chicago, M. & St. P. R. Co., 83 Iowa 380; Parker v. City of Ottumwa, 113 Iowa 649; State v. Helm, 97 Iowa 378.
The instruction complained of is quite broad, and covers more than a page and a half of the printed abstract. It starts out:
“It is for you to determine, under all the facts and circumstances as disclosed by the evidence in this case, whether the defendant company was negligent as charged by the plaintiff; that is, in failing to provide reasonably safe appliances and instrumentalities with which to work. The specific negligence alleged by the plaintiff against the defendant company is, first, that the defendant company failed to exercise ordinary care to keep certain contacts alive with electric current, and, second, that the defendant*21 company did not exercise ordinary care to keep the fourth contact on said machine in reasonable repair and in a safe condition.”
And then the instruction goes on in the last paragraph and states:
“Whether or not at and immediately after the accident in question the electric machine was repaired.”
This, it seems to us, was proper to consider, under Paragraph 2 just referred to, for the purpose of ascertaining whether defendant did keep the contacts alive. Then the instruction goes on:
“And all other facts and circumstances shown upon the trial establishing or tending to establish the actual condition of the appliances and instrumentalities in question.”
The instruction, of course, must be considered in the light of the record and the testimony, and we think that it shows that the evidence was not offered for the purpose of showing negligence, but the actual condition of the appliances at the time of the injury. Appellant offered no instruction on this subject as to the alleged subsequent repairs. Appellant makes the further point that the instruction submits two specifications of negligence, neither of which was the proximate cause of the injury; but this has been referred to before. By Instruction No. 5, the court instructed in regard to the question of proximate cause and contributory negligence. As we understand it, no complaint is made of this instruction, but it is thought by appellant that the verdict is contrary thereto. We think what has been said before disposes of this question.
There may be other incidental matters, but those decided are controlling. It is our- conclusion that there is no prejudicial error, and the judgment is therefore — Affirmed.