170 Iowa 495 | Iowa | 1915
The accident in question occurred in June, 1912. The plaintiff, a brick mason, was then engaged in his line of work upon one of the brick walls of a structure then in course of construction at Sioux City for the defendants Martin. The building in course of construction was a large fireproof hotel to be constructed largely of re-enforced concrete. Prior to the date of the accident, the concrete work
The two defendants Martin were the owners of the real estate and the building in course of construction. The defendants Stevens & Company were architects and engineers and were in general charge of the construction of the building under and by virtue of an oral contract with the Martins. At the close of the evidence, the trial court dismissed the ease as to them on the ground that they appeared to have been agents only for the Martins, and that their relation to the work was that of supervising architects and engineers. It is now urged by the Martins that Stevens & Company were independent contractors and were in charge of the construction of the building as such and that the plaintiff was their servant and employee and not the employee of the
Other defensive contentions are that the evidence was insufficient to show that the plaintiff was injured in the manner claimed; that if he was thus injured, then the injury-resulted from the negligence of his fellow workmen; that plaintiff’s place of work was reasonably safe within the meaning of the law and that the danger, if any, to which he was subjected therein was transitory only and was due to the progress of the work, in which he and his fellow workmen were engaged; and that the employer was therefore not responsible therefor.
There was no written contract between them and the Martins. Their oral agreement was brief and somewhat general. Stevens testified to it as follows:
*501 “We were employed to prepare plans and supervise the construction of this building. That was the entire contract with the exception of the agreement that fixed our compensation. ’ ’
The compensation agreed on was 10 per cent of the actual cost of the building. Originally, the building was estimated at an approximate cost of $250,000. No specifications were prepared, though a general plan was agreed on. Changes were made from time to time. These were generally upon the recommendation of the architects and always with the consent of the Martins. Stevens & Company entered into many subcontracts for material and labor. Some of these were in writing. They all purported to be made'on behalf of the Martins by Stevens & Company as architects. In none of them did Stevens & Company assume personal liability. Stress is laid by appellant on the fact that in some of these contracts it was required that the deliveries thereunder should meet the approval of Stevens & Company. It is argued that this provision discloses their interest therein as contractors. The provision is entirely consistent with a contrary view. It was appropriate and consistent to make such provision for the benefit of the Martins. The very purpose of their employment of Stevens & Company as architects and engineers and superintendents was that they might have, the benefit of their experience, knowledge and judgment. It was entirely consistent, therefore, that the contracts in their behalf should meet the approval of Stevens & Company as a condition precedent to acceptance.
We think the case at this point quite controlled by our previous ease of Hughbanks v. Investment Co., 92 Iowa 267. In its controlling facts in this regard, the case at bar is not materially different from the cited case.
Some stress is laid by appellant upon the fact that the recommendations of Stevens & Company were followed in every ease throughout the construction of the building, and
In the cited eases, it was held that a place to work which was, in itself and in its relation to its surroundings, safe,
For instance, in some of the cases machinery was negligently started by a fellow workman without warning to the injured party. It was held that this did not present a case of an unsafe place to work and that the duty of the master to warn did not apply to the transitory changes that necessarily attended the progress of the work.
We need not repeat the discussion and the distinctions presented in the cited cases. We think they are not applicable to the case before us. In putting the plaintiff to work upon the ground wall he was exposed to the danger of falling material from the wrecking gang on the sixth floor. Whether he should have discovered the danger himself was a question of fact, which was appropriately submitted to the jury. In that respect, the place was unsafe. If it must be said that, in the absence of negligence by a fellow workman, the place was safe, and that only the negligence of a fellow workman would render it unsafe, then the place was safe within the meaning of the law and the defendants were not liable for the injury. The trial court instructed in substance to this effect. It instructed that the workmen of the wrecking gang were fellow workmen of the plaintiff. It instructed further that if the negligence of any one of them caused the injury to the plaintiff, then the defendants were not liable. It is clear from the evidence that there was no necessary negligence on the part of the workmen in the wrecking gang in causing the falling material. The evidence sustains the finding that they were engaged in their regular work and in the regular way and under appropriate instructions from superior authority. The nature and requirements of the work were such that more or less falling material was inevitable, even with ordinary care on their part. They were charged with no knowledge of the presence of plaintiff in an exposed place
The ease is somewhat analogous in principle to those cases involving the use of high explosives in mines and pits. Hendrickson v. Gypsum Co., 133 Iowa 89. The general ground of the holding in that class of cases is that a place of work otherwise safe is rendered unsafe by the use of high explosives and that the workman has no means of protecting himself therein. He is therefore entitled to warning of the use of the high explosives, in order that he may absent himself from the place of work while it is exposed to the danger of the explosive. See Galloway v. Turner Improvement Co., 148 Iowa 93, 99.
In the case before us, the only effective way in which the plaintiff could have protected himself in case he had been warned would have been to absent himself from such place of work while the wrecking gang was at work upon the upper floor.
Somewhat in point here is the case of Hamm v. Bettendorf, 147 Iowa 681. Appellants cite some authorities at this point which tend to sustain their position. Somer v. Harrison, 8 Atl. 799; Donnelly v. San Francisco Bridge. Co., 49 Pac. 559; McPhee v. Scully, 39 N. E. 1007; Lach v. Burnham et al., 134 Fed. 688. In so far as the foregoing eases hold that the workmen on the upper floor were fellow workmen with the plaintiff and that the master was not liable for their negligence, we are in accord with them. In so far as they regard the foreman or superintendent as performing no magisterial duty under the circumstances shown herein, they
IV. It is urged that the evidence was wholly insufficient to sustain a finding that the plaintiff was injured by any falling material from the sixth floor. There was some evidence tending to show that workmen were engaged upon the seventh floor in performance of the contract of some subcontractor. It is argued that the cause of the plaintiff’s injury could have originated from this floor as easily as from the sixth floor, and that the evidence introduced is as consistent with one theory as with the other. The evidence was by no means conclusive that there was any work in operation on the seventh floor. The evidence is.sufficient to warrant a finding by the jury that plaintiff’s injury was caused by a piece of hardened cement. It also appears that the breaking of such pieces was an ordinary incident of the wrecking work which was going on upon the sixth floor. Candor could hardly reach any other conclusion than that reached by the jury at this point. It is needless to say, therefore, that we think the evidence sufficient.
“Par. 4. It appears from the evidence, that about the 13th day of June, 1912, the plaintiff while employed and engaged in working as a brickmason in laying the first story of a brick wall of a two-story addition that was being constructed and attached to one of the wings of said Martin hotel, then under process of building, was injured as a result of being struck upon the head by a piece of hardened concrete, or some other object, that had fallen from some portion of said wing of said hotel building, near which he was working upon said wall.” -
“And as you have already been told, to entitle him to recover anything on account of said injuries, he must satsify you by a preponderance .of the evidence that said injuries were caused by a falling piece of concrete that had been loosened or detached or broken either from some portion of the concrete work of the sixth story of the structure near which he was working, etc.”
The introductory statement, “It appears from the evidence, ’ ’ was doubtless somewhat inapt. From the instruction as a whole, however, the meaning of the court is rendered quite plain. This expression was used in the sense that there was evidence to such effect. The second sentence of the instruction which we have quoted above expressly charged the jury that the burden of the proof as to such fact was upon the plaintiff. We think, therefore, that the appellant is without ground of complaint at this point.
“The probable effect will be that this man will continue in a state of nervous and physical , debility, more than likely*508 to become epileptic and possibly insane or demented. . . . The chances, according to statistics, is about five per cent. I mean 20 out of 100 who sustain such injuries become subject to epilepsy, insanity or some form of dementia.”
Similar testimony was given by Dr. Jepson. The objection to this testimony is now urged upon our attention. The ground of objection is that the evidence only went to the “probable” effect, whereas the jury could allow compensation only for such future disability as was reasonably certain.
Manifestly, the criterion contended for by the appellant is the proper rule to lay before the jury. Such was the rule given by the trial court. It does not follow, however, that the testimony of a physician must respond to this language to be rendered - admissible. The physician, as a witness, was required to go no further in his statement than his candid opinion would warrant. The question of what disability the plaintiff was reasonably certain to suffer in the future still remained as the final question for the jury in the light of all the testimony in the case. No complaint is made of the form of the instruction to the jury at this point. We only hold, therefore, that the testimony complained of was admissible. There is the further consideration here that the verdict actually rendered was a very moderate one in the light of the testimony. If, therefore, the testimony complained of were technically objectionable, it would appear to have been quite nonprejudicial.
•The foregoing comprise the principal questions presented for our consideration. We find no error in the record. The record as a whole impresses us with the fairness of the trial. The injury to the plaintiff was severe. The verdict is moderate. The liability of the defendants is almost conclusive under the evidence. The judgment of the lower court is therefore — Affirmed.