123 Iowa 73 | Iowa | 1904
Defendant is a grain dealer, engaged in business at the town of Mitchellville. In connection with that business, he runs and conducts an elevator. This elevator had an elevated platform, supplied with a trapdoor to let the grain pass through, and also with an elevator dump, which was so arranged that, after a team had passed over it, by the use of a lever the operator could drop the hind wheels of the wagon, and at the same time elevate the front ones so that the grain would pass out of the hind end of the wagon ¡box, down through the trapdoor to a bin, from which place it was elevated into the main structure by machinery. The allegations of negligence are as follow's: “On or about the
This is all the relevant evidence in the case, and we have to determine, first, whether it establishes -the facts stated in the petition; and , second, whether these facts constitute a cause of action. If it shows the employment of Davis as a servant of defendant, it also establishes that he was not employed to use or in any manner to handle the dump, and that he had no right to use it; that at the time in question he volunteered to dump the loads which had passed onto the elevator ahead of plaintiff, and that neither Ault, who was employed to look after the dump, nor the defendant, knew that Davis had undertaken to manage the dump; and that whatever he did in connection with this appliance was wholly without authority from any one. Doubtless much of this evidence was incompetent, had it been objected to by defendant; but, as no objection was made, and as plaintiff is relying upon it as making out his case, we must accept it as the true version of the affair, and treat it accordingly. There is absolutely no evidence that Ault sent Davis to manage the dump, or that defendant had any knowledge of the fact that he was operating it. He was not employed for that purpose, and whatever he did was as a mere volunteer, and contrary to the terms of his employment.
The. trial court was right in directing a verdict -for the defendant, and the judgment is artirmed.