139 Iowa 688 | Iowa | 1908
The defendant corporation is engaged in the business of killing, curing, packing, . and selling meats at Sioux City, Iowa. About two or three weeks prior to the date of the accident Emil Lunde, a boy of about seventeen years, was engaged to labor in the engine-room' of the defendant’s works. Lunde had no prior experience in such service, but is described - as a steady, sober, careful workman. Among the duties required of him was the oiling of the- machinery or of certain portions of it. Included in this machinery was an engine, to which was attached a large and heavy fly wheel about sixteen feet in diameter, the lower part revolving in a pit-in the floor. On the south side of the fly wheel and parallel with it was an apparatus known as the ice machine. Between the wheel and the ice machine there was a narrow passageway, intercepted or obstructed midway by the south axle of -the fly wheel and the bearing in which it rested. To oil this bearing the usual and appropriate method was for the employe to enter this passageway from the east end. Tim wheel pit along this end of the passageway was guarded by a double line of gas pipe rails, fastened to posts standing close to the edge. The upper rail was about thirty-six inches, and the lower twenty-five inches above the floor surface. The passage was floored with cement, and was about nine and a half inches in width. The edge of the rim of the wheel hung within about five inches of the guard rail, but the spokes not
The petition charges the defendant with negligence leading to the death of the intestate, in the following particulars: First, in failing to furnish the deceased a safe place to work; second, in failing to properly warn or instruct the deceased as to the proper manner of doing the work, and how to avoid danger in its performance. The answer denies all negligence on the part of the defendant, alleges contributory negligence on the part of the deceased, and that he assumed the risk of the danger to which he was exposed.
Upon the question of plaintiff’s intestate’s contributory negligence you are instructed that, where there are no eyewitnesses as to the manner in which he was conducting himself at the time he received the injuries, the law presumes that he was exercising such care and caution as men of ordinary prudence, judgment, and discretion exercise under like circumstances and in relation to the same matters, unless the facts and circumstances shown upon the trial negative such presumption; and you should indulge in such presumption in his favor, unless the facts and circumstances developed on the trial negative such presumption.
This in no manner relieves the plaintiff from the burden of proving the freedom of the deceased from contributory negligence, but states the rule, now well settled, that this burden may be met, and the fact of due care may be established, prima facie by showing that when last seen he was acting in the line of his duty, without any apparent negligence, and that there is no living witness or direct testimony as to the manner in which his death occurred. Under such circumstances, for want of
VI. Other points, made in behalf of the appellant, may be condensed in the proposition that the verdict is not sustained by the evidence. With this contention we can not agree. For reasons already stated we are satisfied that both upon this alleged failure of the defendant to furnish the deceased a reasonably safe place to work, and upon the question whether reasonable care was exer
Proof of proximate cause is subject to no more burdensome rule than is applied to the proof of any other essential fact in ¡an ordinary law action. It must be established by a preponderance of the evidence, direct or
The fact that a horse is found lying upon a railroad right of way, in a wounded and mangled condition, justifies the inference that it was struck by a passing train. A fire starting in the dry grass or underbrush near a railway, immediately after a train -has passed, will support a finding that it was kindled by sparks or cinders from the locomotive. In the Settle case above cited proof that, a handhold on the car, from which -the deceased fell, and to which he had been clinging, was bent out of shape was held to be evidence that this imperfect appliance was the cause of the fall. If the plaintiff do
The judgment appealed from is' therefore affirmed.