108 Iowa 377 | Iowa | 1899
— There can be no controversy over the proposition that the master must furnish suitable machinery for the use of the servant and a safe place for him to work. But here Anderson, and not the defendant, was the master. Humpton v. Unterkircher, 97 Iowa, 509. The liability of the defendant, if any, cannot depend upon, or rise out of, any contract with the plaintiff, for there was none, but must rest on its neglect of some duty which it had undertaken towards him in common with other laborers of Anderson. Toomey v. Donovan, 158 Mass. 232 (33 N. E. Rep. 396) ; Johnson v. Spear, 76 Mich. 139 (42 N. W. Rep. 1092) ; Neimeyer v. Weyerhaueser, 95 Iowa, 497. It was not remiss in its duty with respect to appliances of machinery, for it had agreed to furnish none. Was defendant negligent with respect to the place where the work was to be done? The contract was made with reference to the pile of slack in the same condition, and the track in the same location, as when the accident happened. All the dangers incident thereto were obvious to Anderson. But it is said that the plaintiff complained, and the defendant promised to cool the slack by throwing water on it, and because of this promise he continued work, and was injured. As the defendant had omitted no duty in complying with its obligations, the plaintiff waived nothing by continuing in Anderson’s employment. The promise to repair is only important as rebutting the inference that defects are wiaived by continuance in employment with knowledge of their existence. Ford v. Railway Co., 106 Iowa, 85. The demurrer was rightly sustained, and the Judgment is aKKIrrMbd.
