166 Iowa 1 | Iowa | 1914
I. The plaintiff in July, 1910, was in the employ of the defendant as an unskilled laborer. He sought employment as teamster from Mr. Chamberlain, the foreman, but, there being no opening in that work, he was put at other jobs. The business of the defendant was the manufacture of furnaces, and as a part of the work it was necessary to trim or finish the castings which were used by breaking off lugs which remained and grinding the casting on an emery wheel. Plaintiff was put at this work, but at times was assigned to other duties of common labor. He had had no experience in the particular work of trimming the castings, but was directed
The foreman in his testimony stated that in directing the plaintiff as to the manner in which to break off the lugs or gates he placed the casting on the floor, and did the work there, and did not direct the plaintiff to use the frame or bar as a place upon which to do such work. Plaintiff’s employment extended only over a week, and he testified that during that period he did not work more than ten or fifteen hours on the emery wheel. The evidence tends to show that at the time of the accident the wheel was revolving rapidly, at about 2,000 revolutions per minute, and that the factory test of the wheel had resulted in the recommendation that it be run at 950 revolutions per minute. There also was evidence to the effect
A witness, Borchardt, testified that he was at the time in the employ, of the defendant, and in his employment had occasion to see and use the emery wheel in the factory. About a week before the accident he says he noticed this wheel, and that it appeared to be seamed with three small cracks, which he describes as being about three inches from the hole that the mandrel ran through, running towards the edge of the wheel, and that they were two or three inches long. He testified that he told the foreman of its condition, but that the latter said they, would have to use it as it was all they had, and they must keep it going as they were behind with the work. The foreman testified that his attention had never been called to any cracks. Other witnesses testified that they had used the wheel, but had not noticed any cracks in it. There also was evidence tending to show that the hammer used by plaintiff had marks upon it, from which it is claimed that he struck the wheel with it.
Plaintiff’s action was based upon negligence charged as follows: In providing for his use an emery wheel with the bar or rest of the frame so far from the wheel as to permit castings or other articles to be drawn between the wheel and the bar, thereby rendering the machine unsafe for use; in furnishing for use an emery wheel known to be unsafe for use at more than 1,200 revolutions per minute, and operating it at about 2,200 revolutions per minute, thereby rendering it unsafe for plaintiff’s use; in failing to guard the wheel with a shield or cover of sufficient strength to arrest the flying fragments of the wheel should it burst; in providing for plaintiff’s use an emery wheel in which there were flaws, thereby rendering it unsafe. In submitting the case to the jury the trial court withdrew all charges of negligence excepting the one last given, which was in providing for plaintiff’s use a defective emery wheel. Upon submission to the jury a verdict
II. The assignments of error relate to the sufficiency of the evidence to support the verdict, in that it was not shown that the cracks in the emery wheel were the proximate cause of the injury, or that it was negligent to run the wheel with surface cracks in it, and also raise the questions of assumption of risk, negligence of a fellow servant, and contributory negligence, all of which' arose under the pleadings. These questions were raised in a motion to direct a verdict, by instructions which were requested by the defendant, and also arise under the instructions given by and the rulings of the trial court.
III. Upon plaintiff’s theory of the case the facts were in dispute; and, unless the objection to their legal sufficiency is good, taking them in their strongest bearing in support
IV. It is claimed that if the wheel was defective by reason of cracks in it, and that, if it be held to be a matter of common knowledge that wheels in that condition are more
Y. It is claimed that in knocking off the lug or gate from the casting so close to the emery wheel, and while it was running, the plaintiff was guilty of contributory negli-
YI. The appellant contends that the injury of which plaintiff complains, assuming that it was caused by the defective wheel, resulted from the negligence of a fellow servant, Chamberlain, and not of the master; that Chamberlain, the foreman, as claimed by the plaintiff, was informed by the witness, Bor-ehardt, a day or' two before the accident, of the unsafe condition of the wheel, but did not remedy it by substituting a new one, although there were others in supply which could have readily been obtained. It does not appear that Chamberlain, in the work which the plaintiff was performing, was in any way connected with it as an operative act; his relation to Chown was wholly as a superior; he was charged with the ■authority and duty, not only of employing men, but also of directing when they should work, and of providing them with the necessary means and equipment with which to work. It is a duty of the master to supply the employees with safe machinery, and if for any reason it becomes unsafe, it is his duty to make it safe either by repair or substitution. While Chamberlain was an employee of the defendant corporation by reason of his position in respect of furnishing means of work, he stood in the relation of vice principal to other employees. His attention having been called to the unsafe condition of the wheel, and such knowledge having been brought to him as one representing the employer, it became his duty, not as a co-employee, but as one standing for the master, to remedy the condition. Newbury v. Manufacturing Co., 100 Iowa, 441; Collingwood v. Fuel Co., 125 Iowa, 537.
If there was neglect on the part of Chamberlain to procure another wheel, such had no relation to the employment and service of the plaintiff other than as a part of the machinery to be used by him, and this was primarily the master’s duty, and which was by it delegated to its foreman. The case is unlike that of Ashcraft v. Locomotive Works, 148 Iowa,
VII. The questions we have considered cover all matters presented in the assignment of errors. We find no error in the record, and the judgment of the trial court is — Affirmed.