168 Iowa 393 | Iowa | 1914
The defendant corporation owned and operated a cement mill and at the time of the accident in question, plaintiff was one of its employees. In operating the mill, rock was supplied to its crusher by the use of cars moved by electric power upon an inclined track from the pit or quarry some 400 feet distant. In connection with this machinery there was employed a so-called “dolly” or “barney,” a counterweight of some 700 pounds attached to the cable and mounted on wheels fitted to a track of iron rails extending along the incline between and below the rails on which the cars of rock were hoisted. It is alleged that this dolly was so constructed that it was easily derailed and, in the operation of the hoist, was in fact frequently derailed, and it was the custom and rule observed by the defendant when the dolly became so displaced to hold the engine and hoist stationary until the employees charged with such duty should restore it to the track and give the proper signals for putting the machinery in motion. It is further alleged that on the day in question the dolly was derailed and the hoist being stopped to permit the trouble to be remedied plaintiff with another employee undertook to replace said weight on its track. While so employed, he says, the hoist was negligently and improperly set in motion with the result that his foot was caught and crushed between the dolly and a mass of rock at the side of the pit. For the injury thus received he seeks to recover damages. He charges the defendant with negligence in this connection as follows: First, — That the premature movement of the hoist was occasioned by the incompetency and inexperience of one Lamphere who controlled the operation of such hoist and that defendant was negligent in employing
The first charge of negligence the court did not submit to the jury and the ease is to be regarded as presenting only the issue upon the second specification. At the close of the plaintiff’s case defendant’s motion for a directed verdict in its favor was denied and error is assigned upon the ruling. The trial then proceeded to a conclusion and there was a verdict and judgment for plaintiff in the sum of $3,000. To reverse this judgment defendant has appealed. The errors relied upon as entitling appellant to a new trial have reference, first, to the denial of the motion for a directed verdict; second, the admission of certain expert testimony offered by the plaintiff; and third, the giving of two certain instructions hereinafter more specifically mentioned.
We cannot properly burden this decision with a lengthy or detailed statement of the evidence. It is enough to say that it tends in some material degree to show that plaintiff was employed substantially as alleged and that while he was engaged in replacing the dolly on the track the hoist was negligently put in motion and he was thereby injured without contributory negligence on his part. It appears .that according to the usual methods observed in operating the mill it was the .duty of the person in charge of the hoist to suspend its movement while the dolly was being adjusted, and to set it in motion only upon receiving the proper signal from the pit
There was no error in the admission of the testimony to which plaintiff excepts. None of the authorities cited by
“If you believe in this case that the plaintiff was injured and that the system of signaling adopted by the defendant was negligent and unsafe, and it is further shown by a preponderance of the evidence because and on account of said unsafe system of signaling that the dolly was started as charged and caused the injury to the plaintiff, then you will find that said negligence was the proximate cause of plaintiff’s injury. But if the injury to the plaintiff was caused in some other way not concurrent with the system of signaling and contributed to by the same, then the negligence of defendant, if you find it was negligent, would not be the proximate cause of plaintiff’s injury, and he cannot recover.”
The eighth paragraph having first stated that the master is not liable to a servant for injuries occasioned to him by the negligence of a fellow servant, proceeds as follows:
“In this case if you believe that the plaintiff and the man referred to as the Austrian by the name of Tony were engaged together in work, and the injury of which the plaintiff complains was inflicted by reason of the failure of the said Austrian to exercise ordinary care independent of any negligence on the part of the defendant, then plaintiff cannot recover. But even though said Austrian was negligent, and you further find that defendant was negligent in the respects charged, and such negligence of the defendant concurred with and contributed to the injury of which plaintiff complains, then you will find that the said injury was caused by the
The exception taken to these instructions stated in the language of counsel is that the law as there laid down ‘ ‘ allowed plaintiff to recover without showing and without being required to show that defendant’s negligence was the proximate cause of the injury. ’ ’ If the charge of the court is justly open to the criticism then it is, of course, erroneous but as we read its language it was not intended to convey the meaning which counsel attribute to it but on the contrary it fairly expresses the correct thought that if the negligence of the defendant was the proximate cause or a proximate cause of plaintiff’s injury then the further fact, if shown, that the negligence of a fellow servant concurred with that of the master in producing such injury would not excuse the latter from liability. This we think is correct. Of two causes of a given effect both may be proximate; or if it be argued that there can be but one proximate cause, it is then obviously true that >two or more causes originating separately in the negligence of master and servant may so concur or unite in operation and effect as to be together the proximate cause of an injury. Gordon v. R. R. Co., 129 Iowa 747, 753; Pool v. R. R. Co., 58 Pac. 326; Gardner v. Separator Co., 134 Iowa 6.
In such case neither party so in fault can point to the other’s negligence and ask to be released from responsibility on that account. Of course it must appear that the negligence which is made the basis of recovery was such that without it the particular injury in question would not have occurred, and taking the instructions as a whole the jury must have so understood. Proximate cause was properly defined and the jury told that to justify a recovery it must be found not only that defendant was negligent as charged but that such negligence was the proximate cause of plaintiff’s injury. The phrase “concurrent negligence” employed by the court is criticised by counsel as misleading because, it is said, the word
We find no authority to the contrary.
Finding no error requiring another trial of the issues, the judgment below is — Affirmed.