184 Iowa 619 | Iowa | 1918
Plaintiff and. Train were fellow servants, and defendant is not liable for injuries caused by the negligence of the latter. The plaintiff alleged that Train was incompetent to run the mining machine; that defendant had full knowledge thereof, or, by the exercise of ordinary care, could have known of such incompetency, but for which the accident would not have happened.
The law is well settled that it is the duty of the master, not alone to exercise reasonable care to provide a reasonably safe place for his servants to work in, but also to exercise like care in the selection and employment of fellow servants. Gregory v. Chicago, R. I. & P. R. Co., 147 Iowa 715; Forney v. Mardis Co., 155 Iowa 667; Wolters v. Summerfield Co., 160 Iowa 127; Louisville & N. R. Co. v. Wyatt’s Admr., 29 Ky. Law Rep. 437 (93 S. W. 601); Odegard v. North Wis. Lbr. Co., 130 Wis. 659 (110 N. W. 809); Peters
The evidence relied upon to establish Train’s incompetency, in substance, was that he was unfamiliar with, and had never operated, the particular machine in question; that he had,.-for seven or eight years prior to the accident, worked simply as a miner in the mines at Mystic, and had nothing to do with mining machines; that he admitted to plaintiff and his wife, after the accident, that he knew nothing about the machine: while, on behalf of defendant, it is claimed that Train not only possessed experience, but, before coming to this country, became familiar with mining machines operated by compressed air and electricity; and that the difference between the machine in question and those which' he had used in Scotland did not render the operation of defendant’s machine more difficult. Upon this point, the evidence is somewhat conflicting. Plaintiff testified that he was present while the demonstrator was at the mine; and that Train did not operate the machine, but that same was run exclusively by the expert; that the former had never started or operated the same until the morning, and at the time, plaintiff was injured.
In this connection, it is well to consider the character, mechanism, use, and manner of operating the mining machine in question. It consisted of a combination of machinery, encased in an iron box, from one end of which a bar, called the cutter bar, extended at right angles. This' cutter bar was 4 feet 9 inches in length, and was equipped with a series, or groups, of sharp picks. The machine weighed approximately 7,000 pounds, and was used to remove the earth from underneath the coal. When in motion, the machine made a loud noise, and the picks, attached to the cutter bar, were operated very rapidly by a revolving
“I put a sprag, and then we saw that machine had been cutting up into the coal. I suggested that we lift the back end of the machine up here, and throw the cutter bar down to get beneath the coal again. So I put a sprag up, when did that I was back here — at back end; sprag, a piece of timber; putting up sprags to hold the coal, keep it from falling until loader came along and would load it up; had put up sprag back of cutting bar. Train says, ‘Where did you want this skid?’ I says, ‘Hold on a moment until I get*623 through.’ Had no other way to come except across here, this place between the coal and machine. When I was in the act of crossing on my hands and knees (the skid was a board that was used, underneath the back end of the machine to draw the cutter bar down), just before I started between the machine and the coal, I says, ‘Hold your hand a moment, and I will come and show you.’ When I was in the act of getting over on my hands and knees, the helper shouts, ‘Pull in the chain,’ and he turned on the power. Helper was Emery Savage. When I started through, the machine was not running, nor was it when Train made that remark.”
According to the testimony of Train, before starting the machinery, he was careful to see that everything was clear; in answer to a question of Savage’s as to whether the power was on, he, replied he thought so, but would try it and see; before doing so, he said, “All right, all clear;” at the time, plaintiff was standing from 5 to 7 feet in the rear of the machine; when it commenced operating, he was at least 7 feet from it; there was no occasion or duty requiring him to go upon the cutter bar, or expose himself to danger. Savage testified that no skids were placed under the machine; that the cutter bar was not cutting into the coal; that plaintiff did not make the statement claimed by him, immediately before the accident; and otherwise and generally substantially corroborated Train’s testimony. The power was turned on by the movement of a lever; but the machine was so constructed that the chain which Savage was attempting to adjust to the “jack” could be placed in motion and adjusted without setting the picks in motion. For a better understanding of the machine and its construction, we include herein a photograph thereof.
Plaintiff testified that all of the parties present had on carbon lights, and that Train stood by the machine when he turned on the power.
The burden rested upon the plaintiff to show, by a fair preponderance of the evidence, that Train was incompetent; that same was known to the defendant, or, by the exercise of reasonable care, should have been known to it; and that such incompetency was the proximate cause of his injury. It would seem almost incredible that plaintiff, who, for several days, had observed the demonstrator operate the machine, would have gone upon the cutter bar when the picks were in motion; yet, if the testimony of Train and Savage is accepted, he must have done so. Likewise, it is difficult to understand how a skilled and competent operator, Knowing the position of plaintiff upon the cutter bar, would have turned on the current, without having first adjusted the lever that released the picks from motion, while the necessary machinery, for the purpose of adjusting the chain, was set in motion. That plaintiff was in a position of peril at the time the current was turned on, would seem to
Evidence of a single accident would not make out a prima-facie case of incompetency; yet the courts have held that the facts and circumstances surrounding the occurrence may tend strongly to so indicate, and may be considered by the jury upon this question. Pittsburg Rys. Co. v. Thomas, 174 Fed. 591; Holland v. Southern Pac. Co., 100 Cal. 240 (34 Pac. 666); Consolidated Coal Co. v. Seniger, 179 Ill. 370 (53 N. E. 733); Smith v. Chicago, P. & St. L. R. Co., 143 Ill. App. 128; Evansville & T. H. R. Co. v. Guyton, 115 Ind. 450 (17 N. E. 101); Baulec v. New York & H. R. Co., 59 N. Y. 356, 363.
Upon the question of defendant’s knowledge of Train’s alleged incompetency, it appears from the evidence that an officer of a local labor union complained to Williams, the principal owner and superintendent of the mine, that the demonstrator, and not a union employee, was running the machine, and that, during the conversation, Train’s name was not mentioned; but Williams said to him that the demonstrator would not be there long enough to join the union; that the man who was working with the machine did not know how to run it; and that they had no other man in their employ who had ever previously run that particular kind of machine.
Williams testified that, before the employment of Train, he interrogated him fully as to his knowledge of mining machines of the character in question, and his experience
It is not material that the finding of the jury upon the question of Train’s incompetency or defendant’s knowledge thereof, or whether, had defendant exercised due care to ascertain his competency before employing him, it would have known thereof, may or may not be in harmony with the views of this court, as the findings of the jury upon disputed questions of fact are conclusive and binding upon the court.
II. Thirty-six of the sixfy-two assignments of error relate to rulings of the court upon questions of evidence. It is manifestly impossible, within the reasonable length of an opinion, to discuss these separately. As we understand counsel for appellant, he does not seriously contend that a reversal based upon any separate ruling of the court should be granted, but that, taken together, error and prejudice are shown. Numerous objections urged were exceedingly technical; others are without substantial merit; while, possibly, a few might well have been sustained. However,
IV. Counsel for defendant offered a large number of instructions, all of which were refused; but many of the suggestions contained therein were embodied in the court’s charge. As we are fully convinced that the instructions given by the court correctly stated the law, and fully submitted defendant’s theory to the jury, we refrain from detailed discussion of the requested instructions.
VI. Shortly after the accident, an arrangement was made between plaintiff and defendant by which the latter continued to pay plaintiff wages, until f 1,111 was paid to him. Defendant pleads that the above sum was paid, and received by plaintiff, in full and complete settlement of the damages suffered by him. The evidence was in conflict as to whether the payments were made voluntarily by defend
VII. Affidavits of jurors were attached to defendant’s motion for new trial, for the purpose of showing misconduct of the jury, while deliberating upon its verdict; but counter affidavits filed by plaintiff tended strongly to show that no misconduct occurred. We are content with the ruling of the trial court upon this, point. Other questions argued by counsel have not been overlooked, but are not of controlling importance.
The record, which, together with the argument of counsel for appellant, is quite voluminous, has had careful and thorough consideration; and we are not convinced that defendant was denied a fair trial in the court below. As we find no error, its judgment is — Affirmed.