147 Iowa 681 | Iowa | 1910
Plaintiff, -while employed in what is known as defendant’s bolster department, in its factory, at Bettendorf, Iowa, was injured by reason of the fall of a pile of steel plates which had been created or erected by other employees in the prosecution of their work. Plaintiff had been in defendant’s employ about a year and a half before receiving his injuries, and was at the time he was injured in the bolster department, where he operated or helped to operate presses which shaped, squared and sheared beams, bolts, bands and plates, bolsters made of “I” beams, plates, rivets, etc., the beams being shaped by machinery, and they have a plate which goes on the bottom of the bolster when completed. These plates are punched by machinery in the bolster department; but the riveting is done elsewhere. When injured, plaintiff was working as a helper on a punching press — a machine used for punching holes in steel plates. The operator of the machine was one Tom Date. Thomas Cain was the foreman of the bolster, department, and plaintiff took his orders from this foreman. By direction of the foreman he had been helping Date, and had been so working for about two days prior to his injury. The day before the accident he had been punching plates which were piled about the machine, and, as it had been determined to use a smaller plate, on the next day, Saturday, he and Date began early in the morning changing the dies on the machine. While they were so engaged, other workmen employed in and about the bolster department were bringing in the smaller sized steel plates, -and piling them up around and about the machine. The men were instructed about the number to bring in; but were not told how high to pile them, The
The work of changing the dies was completed about noon, and immediately after the noon hour plaintiff and Date began running plates through the press; plaintiff taking the plates from the pile and feeding them into the machine. He was taking plates from one of the short tiers on top of the pile, and had fed twenty or twenty-five into the. machine, when the pile fell while his back was turned, falling upon him, breaking his leg, and otherwise injuring him. The plates were piled upon a brick floor, and no complaint is made of the foundation. The charges of negligence which the court submitted to the jury were (1) knowledge of the foreman, Cain, of the unsafe condition of the pile of plates a sufficient length of time before the injury to have remedied the defects before the injury occurred; and (2) failure of the foreman to warn plaintiff of the dangers incident to the pile of plates after the foreman knew or should have known of the condition.
We can best present the plaintiff’s theory by here copying the instructions bearing upon these' issues:
(7) It appears that such plates were placed and piled by the plaintiff’s coemployees, whose negligence, if any, in so doing, was assumed by plaintiff when entering such employment. If, therefore, you find such plates as piled*685 were not reasonably safe, such condition under the law would be considered the result of the negligence of such coemployees, and as such was assumed by plaintiff, and hence defendant would not be responsible therefor; but if the defendant through its foreman knew, or had reasonable grounds to know, of such unsafe condition, and had such knowledge a sufficient length of time before the accident resulting in the injury to plaintiff to have prevented the- injury to plaintiff while acting in the exercise of reasonable care and prudence to protect its employees from injury, then it was its duty to so do.
(9) The second ground of negligence is that the defendant failed to warn plaintiff of the ebndition of such pile of plates and the risks and dangers thereof. The duty to warn the plaintiff did not arise unless the defendant knew, or had reasonable ground to knew, that such pile of plates was then unsafe, and not then unless the defendant had reasonable grounds to know that the plaintiff was ignorant, not only of the condition of such plates, but the risks incident thereto. Hence, if you fail to find that the defendant had reasonable grounds to believe that the plaintiff was ignorant of the condition of such-plates, or fail to find that the plaintiff did not know of the risks and dangers therefrom, or fail to find that such pile of plates was unsafe, or fail to find that the defendant knew that such plates were unsafe, if so, then in either of such events the duty to warn plaintiff did not arise, and in such case the defendant can not be held to have been negligent in failing to warn the plaintiff of the condition of such plates and of the dangers, if any, arising therefrom. But if you find that such pile of plates were not in reasonably safe condition, and that the defendant knew thereof, and knew that by reason thereof it was dangerous, and had reason to know thait the plaintiff did not know thereof and would not discover such danger while in the exercise of reasonable care and prudence to prevent injury to himself, and further find that defendant knew - of such matters in time that by the exercise of reasonable care and prudence to warn plaintiff thereof and thus avoid injury therefrom to plaintiff, then on your so finding you would be warranted in finding that defendant was negligent in failing to warn the plaintiff of such dangers.
Cain testified with reference to this as- follows:
I told the men what work to do and what work not to do, and discharged men if I had reason to do so and saw fit in my department. The men in that department were subject to my orders as to their work there, and I instructed them what to do and gave them any instructions as to how to do it. That was my duty. I had general charge of the department. Generally, if there was anything wrong in that department, it was reported to me by the men in the department. If it was something that I could fix, I would go ahead and fix it, or have it fixed. As far as my work went, it was my duty to have supervision over that department, and see that things were in the shape that they should be. Hamm was under my direction at that time, and I told him to go and help. Tom at that machine. I knew he would do what I told him to. I know these men were hauling plates and piling them up right there where they were piled. I was around that department watching the work and seeing that things were going the way they ought to. . If Varner and any of these fellows that was working there saw something that was piled up there in a dangerous manner, it was their business to tell me and my business to fix it. It was my*688 business to be there and generally oversee and supervise the work. It was my business to get that material and get it shaped up and put in the shape of these bolsters. That is my department, and my instructions or schedule are simply to get out so much work, and I get out so much work. The details of it, that is'my business to attend to.
He also testified with reference to the plates as follows:
I knew these men were hauling plates and piling them right up there where they piled them. I told their foreman to send those plates in, and have them piled by those machines. I knew these plates were coming in from outdoors.. I knew 'that sometimes these plates had snow or ice on them. I saw these men piling up these plates alongside .of that machine. I knew it was cold weather. I knew there had been sleet and - snow during the winter. I knew generally that if there was snow and ice, if it was cold weather and they were out of doors, it would freeze on the plates. I noticed how high they were piling them before the accident happened.
Other witnesses testified regarding the piling of the plates as follows:
The plates we took in there were small plates about nine or twelve feet long and about ten inches wide. I can not remember how thick. AVhen we brought these plates into the shop, there was ice and snow on a portion of them. On some 'of them there were ridges of ice and snow, more or less. .. . I have helped bring, in material that had ice and snow on it before this. In the winter time, when there comes snow or rain and it is freezing, it sticks to the plates. I worked there nearly three winters. During all that time plates have been stored outdoors. AVhen plates were stored outdoors in the winter, there might be snow or ice on them when I brought them into the shop. This had been true during the three years I worked there. I never received any instructions about putting in crosspieces or as to removing snow or ice. Snow and ice gets on the plates from -bad weather. The effect that has on the plates when piled up in the shop is that they slide easily,*689 easily fall over. I had been piling up plates that had ice and snow on them pretty nearly three winters. After these plates were piled," they were standing straight. They were standing good. These plates were stored in the yard. They were piled one on top of another plate. All the ice there would be on them would be what could run between, and that would be only a thin sheet of ice. When they were piled in the yard, there was little pieces used there in making up the pile. In piling plates there would easily be some crooked ones that we would have to block a little. Sometimes, when the plates were crooked, we slipped one of those slugs in, and sometimes used little blocks of wood about half an inch thick, and sometimes a quarter of an inch and sometimes an inch. I used little blocks like that during all the time I piled plates there. I do not think there was ice on every plate, but there was on a good many. In the winter time there would be ice on most of them. This ice would be just a thin sheet wherever the plate happened to be crooked and standing apart, so .that the water could run between. In taking plates off the pile out in the yard, they would be frozen together, and we would have to break them apart. We would take a hammer and knock them. I think we piled these plates between forty and forty-five inches high that morning. That is the whole pile; No matter what the reason for that unevenness, whether it was the bending of the plate or the ice, we put a block in there to even it up. If a bent plate lies on another one in a pile in the yard, it leaves a hollow space under the bent plate. If the snow and ice would run right in there under this hollow plate, it would form on the plate below it. When we hauled these plates into the shop, we didn’t put them back on the pile just in the order they were taken off the other pile. In piling those plates there when you would come to a plate where for. some reason a plate would not lie level, we would put a piece of wood or one of those pieces of iron under it and level it. That is the way we piled those at Hamm’s machine that morning.
There was ice on the plates we took off Mr. Hamm. It was kind of thin sheets and chunks in other places. This ice was from a quarter of an inch thick down to very thin. The plates were wet from the melting of the ice.*690 This ice was frozen fast to the plates. After the pile fell over, there was still ice frozen to the plates.
The plates that were nsed there at the plant were stored out in the yard at the east end. There was no cover over them. I had seen ice on plates that they nsed there. When the plates commenced to thaw, they were slippery. The plates that had fallen on Hamm were icy, and some of them were bent a trifle. In some places there was no ice on. It was different thicknesses. With these plates piled in that way, I suppose the ice would melt first where the heat hit it first from the outside. There was ice on the plates that fell. That was still on the plates after the plates fell down, and was frozen fast to the plates.
The rule governing such cases as this is well stated in 1 Labatt, Master & Servant, section 29. This section reads as follows: “Where the abnormal conditions which caused the injury are shown to have been originally produced by a cause for which the master was not responsible, the action is or is not maintainable according as it may appear that he was or was not guilty of a subsequent and distinct breach of duty in having failed to ascertain the existence of those conditions, or in having omitted after discovering them to take such steps as might be appropriate for the protection of his servants. This principle is applicable whether the abnormal conditions result from the act of a stranger or a fellow servant, who is not a vice principal.” In Kerker’s case, supra, we said: “Where an employer knows the danger to which his servant will be exposed in the performance of any labor to which he assigns him and
The cases relied upon by appellants’ counsel announce no contrary doctrine. They adhere to and affirm general, principles ¿lready announced in this opinion, and do not apply to a case where a foreman in charge of a department whose duty it is to keep things straight, to watch the work,
II. Of the instructions complained of we shall note but one. It reads as follows:
On the other hand, if you fail to find that the defendant as a reasonable man did not, and was not bound to, appreciate the risks and dangers incident to the then condition of such plates, then he can not properly be held to have assumed the risks and dangers, if any, arising therefrom.
In the last paragraph of this instruction the trial court used the word “defendant” instead of the word “plaintiff” as intended. Substituting the word “plaintiff” for “defendant,” still the instruction i's not clear, although
Finding no prejudicial error, the judgment must be, and it is, affirmed.