172 Iowa 561 | Iowa | 1915
The defendant operates a factory for the manufacture of washing machines at Perry, Iowa, and on May 24, 1913, and for some time prior thereto, the plaintiff was an employee in the factory. On the day named, as he alleges, he was directed by his' superintendent to drive a chuck out of a drill press and place therein a boring bar. Being urged by the superintendent to hurry and make the change quickly, and assuming that the tools furnished him for that purpose were safe, he picked up a punch which was provided at thát place and placed the same in position to drive the chuck from the spindle. In that position, he struck the punch with a hammer, with the result that a scale or piece of the punch was broken off and struck him in the eye, causing him a serious injury. He further alleges the fact to be that the punch was not of a suitable kind, character, material
“That defendant itself manufactured the punch from an old file which was brittle and so tempered that when struck with a hammer it was likely to give off small particles of steel, and, it was, therefore, unfit for the use for which it was furnished ; that due care was not used by defendant in allowing the punch to be used in its factory; and that defendant negligently failed to furnish the plaintiff with fit and proper tools and appliances with which to perform the work required of him, and that he suffered injury as alleged without fault on his part.”
Answering this claim, the defendant admits that plaintiff was employed in its shops at the time in question, and alleges that he was employed as a machinist and repair man, in which capacity it was his duty to select, make, provide and repair all small tools, including such implements as the punch of which he complains. It further admits that plaintiff, in the course of such service, undertook to remove a drill from an iron driving shaft by driving or forcing such drill from its position with a punch and hammer, and that, in so doing, a portion of the punch was chipped off, flying into plaintiff’s eye, causing him pain and suffering, and that the sight of that eye has since been partially or wholly lost; but denies all charges of negligence on its part. In a second count of the answer, defendant alleges that plaintiff entered the employment knowing its dangers, “and assumed all risks and dangers incident thereto”. In a third count, it is alleged that defendant provided and furnished,'for plaintiff’s use, a punch made of soft steel, which was entirely safe for use in such work; that it was plaintiff’s duty to make use of such tool instead of the one which he did use; and that, if injured, as alleged by him, or if his injury was the result of any negligence on the part of defendant, plaintiff contributed
The admissions made in the answer preclude the necessity of discussion upon the fact that plaintiff was injured while in the performance of, his dúty to his employer, and leave for our consideration the questions of negligence and contributory negligence and such • exceptions as have been preserved and argued upon rulings of the court below in the course of the trial.
I.' Is there' evidence in the record upon which the jury could properly charge the defendant with negligence ?
IY. It is argued that, even if negligence of the defendant is admitted or proved, it does not appear to have been the proximate cause of plaintiff’s injury, but that his own failure to do his duty, with reference to the drift and its use, must be held the sole proximate cause. This is only stating in other words the same question we have already considered —whether the record shows the plaintiff chargeable with contributory negligence as a matter of law. It is unnecessary to go over that issue again. For the reasons stated, we hold the question to have been one for the jury.
An, examination of the record reveals no error to the