173 Iowa 571 | Iowa | 1916
Lead Opinion
This case was before this court and determined by it on the 25th of September, 1914. The finding then was adverse to appellant. At the same term in which the opinion was filed, a petition for rehearing was submitted and later a rehearing granted. The case is again before us for determination upon the merits of the original appeal.
There was evidence on the part of the defendants to the effect that the manager of the mill, acting for the defendant, had previously called the plaintiff’s attention to a.guard, and asked him if he could put it on, to which it is claimed that the plaintiff replied that he could. This conversation, however, was denied by the plaintiff. The plaintiff’s action is based upon a charge of negligence, and the negligence charged is that the defendants failed to provide plaintiff with a safe place to work; that they failed to properly guard the ripsaw; did not provide proper and safe appliances for doing the work required of the plaintiff.
. The answer was a general denial, and a plea of assumption of risk, based upon the allegation that the saw and appliances with which plaintiff was working at the time were the
There was a trial to a jury, resulting in a verdict for the plaintiff, and, judgment being entered upon the verdict, defendants appeal, and assign several errors upon which they predicate a right to have a reversal. The first relates to an assumption of risk, the charge being that the court erred, not only in the giving of instructions upon this question, but in refusing to give instructions asked by the defendants. In speaking of assumption of risk, we take it that counsel do not refer to that risk which is ever present with and attendant upon the employment, when the'master has done his full duty to the servant, but rather that added risk which comes from a failure of the master to discharge his duty to the servant.
A proper understanding of this controversy involves the following provisions of our statute. Section 4999-a2 of the Code Supplement 'of 1913 provides:
“It shall be the duty of the owner, agent, superintendent or other person having charge of any manufacturing or other establishment where machinery is used, to furnish and supply or cause to be furnished and supplied therein, belt shifters or other safe mechanical' contrivances for the purpose of throwing belts on and off pulleys, and, wherever possible, machinery therein shall be provided with loose pulleys; 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 4999-a3 provides:
‘ ‘ That in all cases where the property, works, machinery or appliances of an employer are. defective or out of repair, and where it is the duty of the employer from the character of'the place, work, machinery or appliances to furnish rea*575 sonably safe machinery, appliances or place to work, the employe shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employee may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary course of his employment it is the duty of such employee to make the repairs, or remedy the defects. Nor shall the employee under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work; but this statute shall not be construed so as to include such risks as are incident to the employment. ’ ’
The first section above set out was enacted by the 29th General Assembly (Chapter 149, Section 2) ; the second by the 33d General Assembly (Chapter 219, Section 1). The first section has been construed several times by this court, and held to impose upon the master an affirmative duty to provide the protection therein required, and that a failure to do so is negligence per se. See Obenchain v. Harris & Cole Bros., 148 Iowa 86; Poli v. Numa Block Coal Co., 149 Iowa 104; Stephenson v. Sheffield Brick & Tile Co., 151 Iowa 371; Miller v. Cedar Rapids Sash & Door Co., 153 Iowa 735; McCarney v. Bettendorf Axle Co., 156 Iowa 418. It will be noticed that Section 4999-a2, above set out, makes it the duty of the owner, agent, superintendent or other person having charge of any manufacturing or any other establishment where machinery is used, to properly guard all saws used in and about the business. ■ The legislature imposing this duty upon the manufacturer undoubtedly considered it necessary and proper to be done for the safety of the employee. Negligence always presupposes a duty, either legal or contractual. A duty being imposed, a failure to discharge it, resulting in injury to another, is actionable negligence. Therefore, we start with the proposition that it was the duty of these de
In the next subdivision of Section 4999, hereinbefore set Out, the legislature recognized not only the common-law obligation of the master to furnish a reasonably safe place to work and reasonably safe appliances, machinery and tools with which to do the work, but also the provisions of Section 4999-a2; and says that the employee shall not be deemed to have assumed the risk by continuing in the prosecution of 'the work, when the risk is due to defects in the machinery furnished or due to a failure of the master to perform the duties of a master, imposed by the common law or the statute, even though the employee have knowledge of such dereliction, when it appears that the master also had knowledge, unless it be made to appear that it was the duty of the employee, in the usual and ordinary course of employment, to make repairs or remedy the defects; and then he is deemed to have assumed the risk or waived the master’s negligence only when the danger is imminent and to such an extent that a reasonably prudent person would not have continued in the prosecution of the work.
It will be noted from these statutes that there was a purpose on the part of the legislature to change the law as heretofore announced and followed, touching the assumption of risk due to the negligence of the master. The old rule was that, where the master had failed to discharge the duty of a master, and the servant knew this and continued to work without complaint and without promise of repair, he assumed all the added risk due to the master’s dereliction of duty. Under this statute, he does not do so. Its provisions are that,'where
The conditions referred to are those which are created by the master’s negligence and which it is the duty of the servant, in the ordinary course of his employment, to remedy. These must necessarily refer to the ordinary risks which flow from the master’s negligence. Such risks, he does not assume by continuing to work, even though it is his duty, in the ordinary course of his employment, to make repairs. The only risks which he is deemed to have assumed by continuing to work (when it is his duty, in the ordinary course of his employment, to make repairs) are those risks which flow from conditions which render .danger imminent to him if he continues to work. Then he cannot continue to work without making the repairs, if a reasonably prudent man would not have continued to work without making repairs or remedying the defects.
To give the statute its proper meaning and to correctly express the thought of the legislature and to make the law eonform to the evident intent and purpose of the legislature, as expressed in this statute, it must be read as follows: It is the duty of the master to furnish the servant a reasonably safe place in which to do the work assigned, and reasonably safe tools or appliances with which to accomplish his work.
Any other interpretation of the statute would lead to the conclusion that, if the master furnished a place, and put the servant in the place and furnished him with the tools to discharge the master’s business, the master would not be liable if,, peradventure, he was so grossly negligent in furnishing the place and implements that imminent danger was thereby created; that the grosser the negligence of. the master and the greater the danger to the servant, the less liability there was from resulting injury, even though no duty rested on the servant to remedy conditions.
It will be noticed that the statute provides exemptions to the servant from all assumption of risk due to the master’s failure to discharge the duties of a master. He assumes no risk due to the failure of the master, whether imminent or otherwise, unless it was his duty, in the ordinary course of his business, to make repairs or remedy the defects out of which the danger arose. If the failure of the'master to furnish a reasonably safe place to work or reasonably safe tools or appliances does not suggest sueh danger that a reasonably prudent man would apprehend imminent danger therefrom while discharging his duties for the master, he may continue
Summarizing the statute, we have to say that the statute presupposes negligence of the master; a duty on the part of the servant in the ordinary course of his employment to remedy; no assumption of risk from the negligence of the master, unless a duty to remedy defects or make repairs is imposed on the servant; nor then (under such conditions), unless the danger is imminent, etc. This we take to be the correct interpretation of the purpose and intent of the legislature, as expressed in the statute.
Now the mere fact that the servant, with knowledge of the master's. dereliction and duty, continued in the work without complaint and without promise of repair, does not defeat the servant if injured, although he knew and appreciated that there was some added risk involved in continuing the work under these conditions. He does not assume the added risk, unless it was his duty, in the ordinary course of his employment, to remedy the defect, and then only when the dangers from the defect are such that a reasonably prudent man would not continue to work without making the repairs.
Common knowledge tells us that the master does not and cannot, with his own hands, or by or through his own personal effort, discharge all the duties which the law enjoins upon him for the protection of the servant. He must delegate the discharge of these duties to someone. True, when he delegates it, he cannot .escape liability for a failure of the party to whom the .duty is delegated to perform the duty; nor can he escape .liability if the party to whom he does delegate, discharges the duty in a negligent or. careless manner.
In the case before us, the jury might have found that both the employer and the employee had knowledge that the saw was unguarded. Under this statute, the servant assumes none of the risks referred to in the statute that arise from the failure of the master to discharge the duties of a master. Under such circumstances, the servant does not, by continuing to work, assume the risk incident to such conditions, except as hereinafter indicated. Under this statute, the servant assumes no risks that arise from the master’s failure to furnish him- a reasonably safe place to work and reasonably safe tools and appliances with which to do the work. The duty to furnish these rests upon the master,, and he must discharge them if he would escape liability for injuries respiting therefrom. Except where the law absolutely enjoins the doing of a thing as a duty, it is the duty of the master to exercise reasonable care to see that the duty is performed, and to furnish the servant a reasonably safe place to work and reasonably safe appliances. When the statute enjoins the doing of the thing absolutely, the duty is imperative. ■ ,
It is the contention of the defendant, and on this contention he bases a right to. reversal, that the statute makes two distinct and separate grounds on which liability may be avoided: (1) That the danger is due to a defect or defects known to the master which the servant agreed to remedy;. (2) that the injury was due to conditions that rendered the place or the instrumentalities so unsafe that danger or injury
‘ ‘ If the danger in using the ripsaw without a guard was so imminent that a reasonably prudent person would not have continued in the work, then the plaintiff, by continuing in the work, waived the alleged negligence of the defendant and assumed the risk, and would not be entitled to recover.”
We think, however, that this instruction does not correctly express the law, for the reason that, under the statute, the servant was not required to desist from work because the master had failed to discharge his statutory duty; that, in continuing to work, he did not assume the risk of danger flowing directly from this failure, except where, in the ordinary course of his employment, it was his duty to make repairs or remedy defects, and then only when, with defects unremedied, the risk was imminent, so that a reasonably prudent man would not have continued to work; that the phrase, “nor shall the employee, under such conditions be deemed to have waived the negligence ’ ’, relates to such conditions as the servant permitted to exist when, in the ordinary
So we find and hold that the instruction asked is wrong in this: That it does not differentiate between conditions existing when the servant, in the ordinary course of his employment, has a duty to remedy defects or make repairs, and conditions existing where no such duty rests upon the servant. Making the statute apply concretely to the case at bar, we find that- it was the statutory duty of the defendant to guard this saw. It was not guarded. The defendant continued to use it without the guard. Following defendant’s contention, we would have to say that, the fact being that the plaintiff used this saw without a guard, the jury should deny him recovery if, in their judgment' (or they found the fact to be), the danger from its use was imminent to such an extent that a reasonably' prudent man would not have continued to use it; and this though it was not the duty of the servant to place a guard upon it.
The statute does not, however, so say. The statute says that the servant shall not assume the risks unless it is his duty, in the ordinary course of his employment, to make repairs and remedy defects, and then only when the risk is so imminent that a reasonably prudent man would not continue without making repairs or remedying defects or having it done. We are not concerned so much about the law as it was, as we are concerned about the law as it is. It must be conceded that the legislature is omnipotent within the limits of its constitutional rights. When it speaks, the courts listen and obey. A study of the law as it was prior to the enactment of the statute in question is profitable only in so far as it may aid in the interpretation of the act of the legislature, but the act itself constitutes the law which must govern the court. It is not for us to say that it is a departure from prior legislation, nor that it contravenes the pronounce
The act under consideration, and we think it controls the rights of the parties in this suit, is plain and unambiguous. The rules for the interpretation and construction of legislative enactments are valuable only in so far as, in their application, we are able to better ascertain and determine the intent of the legislature as expressed in the act. Where the act is plain and unambiguous, there is no room for construction. Nowhere in the act does it appear that the employee assumes any risks incident to the negligence of the master, where the master knows of the conditions which constitute the negligence, except where, in the ordinary course of the servant’s employment, it is the duty of the servant to make repairs or remedy defects. What could be plainer than to say, under such conditions, “nor shall the employee under such conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such an extent that a reasonably prudent person would not have continued in the prosecution of the work”.
Men must work to live. There is a class of men in the world who depend upon their daily labor for the maintenance of themselves and family. They are skilled in certain lines of work, and seek employment in these lines. There are men whose business it is to employ these men for their gwn profit. Without the labor of these men, these institutions could not thrive or even live. The law has assumed to protect the wage-earner. Public policy demands that he have protection in the performance of the world’s work, and enjoins upon the master certain duties for protection, as indicated in the acts hereinbefore set out. Even when these factories and places where men are required to work are carefully guarded,
The law, as we read it now, does not tolerate negligence on the part of the master that imperils the life or limb of the servant, and so, where the master has failed to discharge the duties of a master, has neglected to provide for the 'safety of his servant, when it lies within his power to do so, and the danger to the servant is thereby increased beyond the ordinary hazards incident to the work, the law says to the master:
“If you know that this negligence has produced a peril to the life and limb of your servant, you cannot be heard to say that the servant knew it and continued to work without complaint, and the mere fact that you have made the place in which your servant is required to work so imminently dangerous to his life and limb that a reasonably prudent man would not continue to work in the place does not excuse your negligence, if, peradventure, the servant continues to serve you under the conditions which you have created, except only when it is the duty of the servant, in the ordinary course of his employment, to make repairs or remedy the defects. You cannot be heard to say you were so grossly negligent and created such imminent danger that a servant who continues in your employment, under the conditions that, you created, must suffer all the loss incident to the injury because, peradventure, he continued in your employment under those conditions. ’ ’
This, we think, is not only what the legislature intended to say, but what it did in fact say in the enactment under consideration, and we are contented to pronounce the law as we find it written. With this construction of the statute, it is apparent that the court did not err in refusing the instruction asked. This was the only debatable ground, if debatable, in the ease.
We find no error justifying a reversal, and the cause is— Affirmed.
Dissenting Opinion
(Dissenting). — I. The opinion proceeds upon the .theory that the case involves nothing more than the construction of Sectipn 4999-a3 of the Code, being Section .1 of Chapter 219 of the Acts of the 33d General Assembly; although it assumes that defendant’s liability is predicated primarily upon Sec. 4999-a2, a safety appliance act passed by the 29th General Assembly, known as Section 2 of Chapter 149. The admitted effect of the holding of the majority is that, where the property, machinery or appliance of an employer is defective, or out of repair, or where it is the duty of the employer, from the character of the place or the work, to furnish reasonably safe machinery, appliances or place to work, an employee shall not be deemed to have assumed the risk by continuing in the prosecution of the work growing out of any defect of which the employee had knowledge, when the employer also had knowledge, except when, in the usual course of his employment, it was the duty of the employee to make the repairs or remedy the defect, and not then unless the danger from continuing in the employment was imminent and to such an extent that a reasonably prudent man would not have continued with the prosecution of the work. The last sentence of the act is not considered by the majority, and the fact that the negligence of the defendant in this ease may have been a violation of the factory act is apparently regarded as of no importance. It is largely because of these facts that I am impelled to register a dissent; for the opinion is an authority for the proposition that, no matter what the negligence of the employer, the employee does not assume the risk unless it was the duty of the employee himself to repair the machinery by which he was injured, or remedy the defect, no matter what it may have been, and not then unless the danger was imminent and the hazard so great that a reasonably prudent person would" not have continued in the work. Shortly stated, the rule announced by the majority is this:
It is an elementary rule in the construction of statutes
As a part of the same ■ doctrine, it is held that if, as a part of his employment, the employee undertakes to make repairs or to keep the premises in a reasonably safe condition and fails to comply with his contract, he cannot hold his master liable for injuries growing out of the use of dangerous
Again, if, without promise of repair, the master, after complaint, assures the servant that the place is safe, the employee is, as a -rule, justified in relying on this assurance and does not, as a rule, assume the risk. This latter is assumption of risk in its larger sense. But here again, if a duty devolves upon the servant, in virtue of his employment, to keep the place safe or to make the needed repairs, and he fails of his duty in this respect, he assumes the risk; for he, and not the master, is in default unless the master knows of' the defect and danger; but even if he does know and the servant makes no complaint, the master may assume that the servant prefers to assume the risk. It is always to be assumed, when a servant enters the employ of another, that he has the knowledge fitting him for the employment, understands the ordinary hazards connected therewith and is content to assume them; and the same doctrine applies if the defects and dangers become apparent to him as a reasonably prudent man after he has entered upon his employment; for, in the absence of statute, there is nothing’ contrary to law or public policy in the doctrine- of assumption of risk.
So much as to the common law upon the subject, which has been stated in ah oracular way, without the citation of numerous authorities. One of the mischiefs of the common law was the right of an employer to use almost any kind of machinery that his interests seemed to dictate, without reference to the life or the safety of his employees; and so not only the Federal Congress, but many, if not all, of the state legislatures-, have from time to time passed what have been denominated safety appliance acts, requiring the use of certain machinery or appliances, guards for machinery, pulleys and various other devices for the safety of employees. The same legislative bodies have also passed statutes changing the common-law rules with reference to assumption of risk and contributory negligence of employees — in some states abolish
“It shall be the duty of the owner, agent, superintendent, or other person having charge of any manufacturing or other establishment where machinery is used, to furnish and supply or cause to be furnished and supplied therein, belt shifters or other safe mechanical contrivances for the purpose of throwing belts on and off pulleys, and, wherever possible, machinery therein shall be provided with loose pulleys; all saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description therein shall be properly guarded.”
This was passed by the 29th General Assembly and is known as Section 2 of Chapter 149 of the acts of that assembly, and it has not been substantially changed since its enactment. Failure of an employer to comply with this statute has been held to be negligence entitling an injured employee to recover. McCreery v. Union Roofing & Mfg. Co., 143 Iowa 303; Kirchoff v. Hohnsbehn Creamery Supply Co., 148 Iowa 508; Verlin v. U. S. Gypsum Co., 154 Iowa 723. After some wabbling on the subject, this court, without reference to any statutory provision on the subject, finally held that, as assumption of risk would defeat the very purpose of the statute, the ordinary common-law rule upon that subject does not apply in all its aspects. See Sutton v. Des Moines Bakery Co., 135 Iowa 390; Bromberg v. Evans Laundry Co., 134 Iowa 38; Woolf v. The Nauman Co., 128 Iowa 261; Verlin v. Gypsum Co., supra. Whether or not contributory negligence would bar the right of an employee, was involved, if not decided in the negative, in one case (see McCreery case, supra); but it was finally held that the injured employee must show freedom from contributory negligence. Wheeler v. Sioux Paving Brick Co., 162 Iowa 414; Poli v. Numa Coal
As the common-law doctrine of assumption of risk hitherto stated was not satisfactory, the 32d General. Assembly passed an act reading as follows:
“In all cases where the property, works, machinery or appliances of an employer are defective or out of repair and the employee has knowledge thereof, and has given written notice to the employer, or to any person authorized to receive and accept such notice, or to any person in the service of the employer and entrusted by him with the duty of seeing that the property, works, machinery or appliances are in proper condition, of the particular defect or want of repair or when the employer or such other person has been notified in writing of such defect or want of repair by any person whose duty it is under the rules of the employer or the laws of the state to inspect such works, machinery or appliances, or any person who is subject to the risk incident to such defect or want of repair; no employee after such notice, shall by reason of remaining in the employment with such knowledge, be deemed to have assumed the risk incident to the danger arising from such defect or want of repair. ’ ’
This is known as Chapter 181, Acts 32d General Assembly. It changed the previous law as follows: It provides that, if an employee having knowledge of defects gives written notice to his employer, or if such notice is given by any state inspector, the employee shall not, after such notice, be deemed to have assumed the risk incident to the danger, by reason of continuing to work therewith. In other words, no promise of repair by the master is needed. All required is that the employer be given written notice of the defect. Manifestly, no other changes were made by this statute. This was amended by the 33d General Assembly so as to make the statute read:
“In all cases where the property, works, machinery or*594 appliances of an employer are defective or out of repair, and where it is the duty of the employer from the character of the place, work, machinery or appliances to furnish reasonably safe machinery, appliances or place to work, the employee shall not be deemed to have assumed the risk, by continuing in the prosecution of the work, growing out of any defect as aforesaid, of which the employee may have had knowledge when the employer had knowledge of such defect, except when in the usual and ordinary, course of his employment it is the duty of such employee to make the repairs, or remedy the defects. Nor shall the employee under such, conditions be deemed to have waived the negligence, if any, unless the danger be imminent and to such extent that a reasonably prudent person would not have continued in the prosecution of the work; but this statute shall not be construed so as to include such risks as are incident to the employment; and no contract which restricts liability hereunder shall be legal or binding. ’ ’
This is known as Section 4999-a3 of the Supplement of 1913, and is the statute now under consideration. It is manifest that it changes the prior statute by dispensing with notice to the employer, and also' changes, but to a large extent recognizes, the rules of the common law. The hand that drew the last enactment had a better comprehension of the common law upon the subject of assumption of risk than the one which drew the first statute, and evidently intended to dispense entirely with the necessity of any notice, protest or complaint on the part of the employee where both the employer and employee have knowledge of the defect, and also to get rid of the doctrine that the employee must have secured a promise of repair on the part of the master, in order to justify him in the continuance of the work with defective appliances. It does not change the rule of the common law where either employer or employee had no knowledge of the defect, and, it will be observed, makes no reference whatever to the safety appliance acts which had, long prior to that time, been placed upon the statute books. It does specifically refer to cases
To my mind it is clear that, under this statute, an employee does assume all such risks as are incident to his employment. He does assume all risks, if that term may properly be so used, if it was his duty to make the repairs or remedy the defects which caused his injury; and he cannot be heard to complain if, with knowledge of defects and dangers which are imminently dangerous and hazardous, so much so that no reasonably prudent man would have submitted to them, he continues in his work with the dangerous machine or appliance or in a dangerous place. This construction harmonizes the statute with the common law and was manifestly what the legislature had in mind. A careful reading of the statute, with reference to its proper grammatical construction, surely shows that an employee whose duty it is to make repairs or remedy defects cannot complain of his master for not doing the things which the servant himself has undertaken to perform; nor should he be allowed to take upon himself hazards to which the law says he should not subject himself and then complain of the master for his wrongdoing. As already stated, such a rule is not in the interest of public
II. It is said, however, that this case falls under the safety appliance act first quoted, and that assumption of risk was no defense, under the doctrine of Poli v. Numa Coal Co., supra; Winn v. Town of Anthon, 168 Iowa 699; Woodworth v. Iowa C. R. Co., 170 Iowa 697; Wheeler v. Sioux Paving Brick Co., supra; Verlin v. Gypsum Co., supra; Rhodes v. Des Moines, I. F. & N. R. Co., 139 Iowa 327. Had the case been tried upon that theory, I would be inclined to agree with counsel that, notwithstanding the statute in question which makes no reference to safety appliance acts, the doctrine of assumption of risk is not in the case. But the case was not tried on this theory. It was submitted as if Section 4999-a3, Supplement to the Code, 1913, applied; and the sole controversy on this appeal is whether or not the trial court correctly interpreted that statute. I shall not, therefore, take any more time with this aspect of the case than to say that it will be time enough to consider the matter when it properly arises. The majority do not attempt to sustain the judgment on this theory, and my dissent applies not to the result alone, but to the reasoning on which the result is reached.
Assumption of risk, as pointed out in the decisions already cited, is quite a different thing from contributory negligence, and an instruction on the latter subject, even if correct as a matter of law, does not cure an error in instructing or failing to instruct on assumption of risk. This is pointed out in the cases already cited, and also in Miller v. White Bronze
For the reason stated, I am impelled to dissent both from the argument and the conclusion of the majority.