183 Iowa 101 | Iowa | 1917
The defendant denies all allegations of negligence on its part, and in various forms pleads that the risk of - injury and death in the manner described was assumed by the deceased. It further pleads that its railway was, at the
The hanger, which, the evidence tends to show, was ordinarily used in work of the kind described, is made by taking a strap or bar of iron, and bending it into a shape having some resemblance to an elongated letter U, the bottom part of which is made broad enough to let in the plank which is to serve as a scaffold. On the upper end of each of the parallel uprights of the hanger, a thread is cut to receive a nut. These ends pass through holes in another flat bar of sufficient length to fit over them, and when this crossbar is secured by the nuts on the ends of the uprights, the device is complete’. ’ When hung in place to receive the plank, the crossbar rests on the upper face of the tie, which, in the present case, was sawed smooth. The hanger on Karlson’s side of the bridge was of the usual kind, which we have here attempted to describe. The one on the opposite side of the bridge, where Johnson worked, was different in the following respect: the upright bars, instead of being finished at the top with threads and nuts and crossbar; were each bent or turned ’ over to make an eye, and through these eyes, a round bolt of sufficient length was inserted, and made to serve the purposes of a crossbar. The evidence further tends to show that this bolt did not fit tightly in the eyes, but was loose, and when in place, was liable to roll on the face of the tie; and this is one of the facts upon which the charge of negligence on the part of defendant is founded. Another condition complained of in this connection is the following: The plan of the bridge contemplated the fastening of wooden guard rails outside of and parallel with the track across the top of the ties, and within about four inches of their ends on either side. In the regular and usual course of construction, these guard rails .are not laid until after the work’ of boring and fas;
The foregoing exposition of the facts alleged or proved is sufficient for an introduction to the discussion of the legal propositions urged by counsel on either side.
I. Stated in brief, the contention for plaintiff is that defendant was negligent: First, in its method and plan of organizing and prosecuting the work; second, in the orders pursuant to which the deceased was at work at the time of the accident; and third, in furnishing the men with a defective hanger. Each specification is denied by the defendant, who also pleads assumption of risk by the deceased.
Taking up first the question whether, under all the evidence, the jury could properly find the defendant negligent in any of the matters complained of, we think our answer must be in the affirmative. In the first place, but for the laying of the guard rails before boring the braces and cap timbers, the projecting ends of the ties would have afforded a space of eighteen inches in length, on which to suspend the hangers in apparent safety; and the usual and proper order of construction was to do this last mentioned work first. The assistant foreman testifies:
“We do not usually put on the guard rails before boring the holes. We never did before. To my knowledge, it was done first this time because we did not have the materials for the braces there,— the material did not come in its order. The workmen then put on guard rails because they did not have anything else to do. Mr. Renshaw directed it to be done. If these guard rails had not been put on the bridge, the ties would have stuck out beyond the rails where the scaffold hangers would be hung about eighteen inches. The fact that the guard rail was on the ties prevented there being eighteen inches of this bridge on which to hang the hangers.”
It was certainly within the province of the jury to find
Nor does the case, as a matter of law, come within the class where the servant is directed or expected to select the appliance or implement for his use from a supply furnished by the master for that purpose; for, as we have said, the evidence would justify a finding that the two hangers in question were the only ones furnished, and that the order of the foreman to get and use the hangers had reference to these alone; and in such case, the workman, as we have already noted, could rightfully place some reliance upon the assumption that they were reasonably adapted to the work to be performed, and were not dangerously defective. Hammer v. Janowitz, 131 Iowa 20, 23; McGuire v. Waterloo & C. F. Union Mill Co., 137 Iowa 447. In Wilder v. Great Western Cereal Co., 130 Iowa 263, the master urged as a defense that the servant was injured because of his own negligence in using a stick to remove material with which a part of the machinery had become clogged, and that, having chosen that manner of doing the work, he assumed the risk; but, as there was testimony tending to show that the foreman had directed him to do the work in that manner, this court, speaking by Ladd, J., said:
.“But it is said that, in selecting the stick, the plaintiff acted for himself, independent of defendant, and for this reason, the latter is not chargeable with negligence in not supplying proper tools. This might be so, had the superintendent given no directions. According to plaintiff’s testimony, he was instructed merely to use a stick, and he selected one like that the superintendent had. If this was so, he was not acting independently, but under instructions as to what tool to use in unclogging the feeder.- * * * He selected*112 such insti'ument, then, .as he was instructed to use, and not one of his own' choosing. * * * True, he did not investigate the machinery; hut he had the right to assume, from the order to do the work, that there was no danger not apparent, and that he could perform it in safety.”
Quite in point in principle is our holding in Luisi v. Chicago G. W. R. Co., 155 Iowa 458. There, the foreman of a section gang directed three of his men to move a wet railroad crosstie, two of the men in front lifting it on the round, iron handle of a track wrench, and the third carrying the rear end of the tie. In attempting to load it on a car, the tie slipped from the iron, and injured the man at the rear. The plaintiff charged negligence, both in defendant’s failure to furnish a sufficient number of men to handle the tie, and in its failure to furnish a proper appliance for such use. Replying to the defendant’s contention that plaintiff assumed the risk, and was himself negligent, we said: ,
“The track wrench used for the purpose of carrying the front end of the tie was of small, round iron, about two feet long, which the jury might easily find from the evidence would slip under the weight of a heavy, wet tie. And furthermore, there was evidence tending to show that the proper and usual tool for loading ties of this character and size was a tie, or grab hook, which could not slip when fastened in the tie. Where an improper tool is furnished, and a servant directed to use it, the master is, or may be, liable for not providing a proper tool.’’
In Rawley v. Colliau, 90 Mich. 31 (51 N. W. 350), the Michigan court, while holding that a plaintiff injured by the use of a defective hammer, when others of a safer kind were at hand, cannot recovex*, proceeds to say:
“If this hammer had been the only one in the shop, * * * or defendants had directed it to be used, knowing its condition, another case would be presented.”
“If the master personally interferes in the performance of work, and, in consequence of this negligence, a servant is injured, the master is liable, unless the carelessness of the servant is a defense; and ivhen the master undertakes to direct specifically the performance of work in a particular manner, we cannot say, as matter of law, that the servant is not justified in relying to some extent upon the knowledge and carefulness of his employer, and in relaxing somewhat: the vigilance which otherwise would be incumbent upon him.” Haley v. Case, 142 Mass. 316, 322 (7 N. E. 877, 879).
Having furnished the materials of which the scaffold was constructed, and provided the method and plan of construction, it was the positive duty of the defendant to furnish materials of a kind reasonably fit for the purpose for which they were to be used. If it failed to so do, it was negligent; and unless it be established beyond dispute that the deceased knew of such neglect, or ought to have known it, and appreciated the danger to which he was thus exposed, then the question whether he assumed the risk was for the jury. Risku v. Iron Cliffs Co., 163 Mich. 523; Rihmann v. George J. Grant Const. Co., 114 Minn. 484; Lee v. H. N. Leighton Co., 113 Minn. 373; Lang v. Bailes, 19 N. D. 582; Swanson v. Schmidt-Gulack Elevator Co., 22 N. D. 563 (135 N. W. 207). Bearing more or less directly upon the law of this case, see also Chicago & N. W. R. Co. v. Bayfield, 37 Mich. 205; Greenleaf v. Illinois Cent. R. Co., 29 Iowa 14, 47; Rogers v. Overton, 87 Ind. 410; Bane v. Irwin, 172 Mo. 306; Illinois Steel Co. v. Wierzbicky, 206 Ill. 201; Norfolk & W. R. Co. v. Ward, 90 Va. 687.
Considering the record as a whole, in the light of our own decisions above cited, and the trend of the authorities from other jurisdictions, we are of the opinion that it cannot be said, as a matter of law, that the deceased assumed