144 Iowa 1 | Iowa | 1909
The defendant is a corporation engaged in the operation of gypsum mills at Ft. Dodge, Iowa, and up to a short time before the accident complained of plaintiff had been engaged as a laborer in some part of the process by which the rock is converted into the commercial product. It appears that for a few days prior to the accident he had been out of work in his usual line, and on the day before his injury had been employed by the defendant’s foreman to assist in taking the machinery out of one of its mills. On the first day he assisted in loading an engine which was to be moved, and was then requested to return on the following day to help in taking down what the witnesses call a “smoke box” or “bridge.”
Failure to provide plaintiff a safe place to work; failure to warn him of the danger created by the removal of the rivets; failure to instruct him as to the danger into which he was being sent when defendant knew him to be inexperienced in said work and to be without knowledge of the insecurity of the place; and failure to exercise reasonable care in removing all of the rivets holding the box to the brackets. The defendant denies all negligence on its part. It claims and offers evidence to show that plaintiff not only knew the rivets had been removed and the danger of venturing upon the box, but was expressly warned of the peril to be encountered in doing so, and was advised to exercise caution to avoid the very accident from which he suffered. Defendant further alleges that, if there was negligence on part of any one with reference to
At the request of the defendant, five special findings were submitted to the jury, on which answers were returned as follows:
(1) Did the plaintiff, prior to going upon the smoke box to readjust the rope, know that all rivets which joined that section to the remainder of the box had been removed? Ans. No. (2) Should the plaintiff by the exercise of ordinary care have known, prior to his going upon the smoke box to readjust the. rope, that all the rivets which'joined that section to the remainder of the box had been removed? Ans. No. (3) Did the plaintiff go upon the smoke box to readjust the rope upon his own motion? Ans.. No. (4) Was the plaintiff warned by Wurtsmith of the danger of going upon the smoke box and pulling it out of its alignment? Ans. No. (5) Was the danger of going upon the smoke box in question, at and prior to the time the plaintiff stepped thereon to readjust the rope and hook, equally as apparent to the plaintiff, Jacobson, as it was to the foreman, Wurtsmith? Ans. No.
Defendant’s motion to direct a verdict in its favor on the ground that plaintiff had failed to make a case on which to go to the jury was overruled, as was also its motion for a new trial because of various alleged errors of the court in its rulings and instructions. The material questions raised are as follows:
You are told that it was the duty of the defendant, in the first place, to use ordinary care to furnish the plaintiff a reasonably safe place to work in which he might safely perform the service required of him by the exercise of ordinary care. If the defendant failed in this
While this instruction is conceded to state the general measure of the master’s duty to furnish his servant a safe place to work, the point is made that it fails to direct the jury’s attention to the limitation in that rule.which the law recognizes when applied to work of this particular character. After considerable reflection we are of the opinion that the contention is well founded. Where the servant is engaged in work the very nature of which is to make the place unsafe, he assumes the hazard arising therefrom. Nor instance, if he undertakes to tear down or demolish a tottering wall, or to wreck a dilapidated building, and by undermining its foundation or removing its supports he increases the liability of the structure to collapse and fall upon him, he assumes the risk. Such dangers are a natural, if not necessary, incident of the service which he has undertaken to perform, and the master is not required to guard him against them. Mr. Labatt, in his work on Master and Servant, speaking of the master’s obligation to furnish reasonably safe instrumentalities, including place
Plaintiff’s employment at the time of his injury was such as to make this phase of the law not only a proper but a material matter for instruction to the jury, and the court’s omission so to do we are disposed to hold reversible error.
Other questions discussed by counsel are not such as are likely to arise on retrial, and we shall not extend the opinion for their discussion. It is sufficient to say that we find no other serious error in the record.
For the reasons stated, a new trial must be ordered, and the judgment appealed from is therefore reversed.