120 Iowa 522 | Iowa | 1903
The evidence for plaintiff showed without conflict that plaintiff was employed to work around the steam shovel as a laborer,.and that he had had considerable experience in that situation; that in the operation of the steam shovel it was not an unusual occurrence for the chain to get off the pulley at the end of the boom or movable part of the crane, and that when it did so it was a part of the duty of plaintiff to assist in replacing it, and that at the time of the accident of which plaintiff complains the chain had got off this pulley, and one Curry, who was foreman of the defendant, in charge of the work, called upon plaintiff to assist in replacing the chain upon the pulley; that in doing so plaintiff went partway up the slope of the bank from which gravel was being excavated by means of the steam shovel, and was pulling upwards on the chain, assisting other employes in making the chain slack at the top so that it could be replaced on the pulley, when a portion of the top part of the bank which was above plaintiff fell and injured him. ■ The evidence also-tended to show that the fall of the portion of the top of the bank which caused the injury was caused, to some extent at least, by the fact that Curry, the foreman, stood there assisting to pull up the chain, another employe being with him in that position for the same purpose, and that the falling down of the bank was also'due to the nature of the bank itself, which consisted in part of a stratum of sand below a layer of hard clay, which constituted the top portion; and that the nature of the bank was open to the observation of all the employes who were-engaged in the work.
The argument of counsel for appellant is based on the contention that there was negligence on the part of the defendant in two respects: First, that Curry, the foreman in charge of the work, did not cause the steam shovel to be removed to a place which would be a safe one for
The cases relied upon by counsel for plaintiff are those in which the familiar doctrine is announced that the duty to use reasonable care in furnishing a safe place for the employe is not discharged merely by the employment of reasonably competent persons to make the place safe, but that the employer will be liable for negligence of the employes to whom this duty is intrusted. The cases cited are those in which it is found that the employe has in the course of his employment been called upon to use defective tools or appliances furnished him for the purpose (Hough v. Railroad Co., 100 U. S. 213 [25 L. Ed. 612]; Hill v. Southern Pac. Co., 23 Utah, 94 [63 Pac. Rep. 814]) or to go on or about trestlework, or scaffolding, or staging insufficiently constructed (Fink v. Des Moines Ice. Co., 84 Iowa, 321; Haworth v. Seevers Mfg. Co., 87 Iowa, 765; Smizel v. Odanah Iron Co., 116 Mich. 149 [74 N. W. Rep. 488]) or to work in a place attended with peculiar danger known to, or which should have been known to, the employer, and not known to the employe (Stahl v. Duluth, 71 Minn. 341 [74 N. W. Rep. 143]; Pioneer Fireproof Const. Co. v. Howell, 189 Ill. 123 [59 N. E. Rep. 535]).
But we think that cases of this character have no ap. plication to the one now before us. When the employer, ■or those representing him, has provided a place which is
There has. been some conflict, in the authorities as to the liability of an employer for the negligent acts of the foreman working with other employes in the prosecution
In view of these well established principles, we have no difficulty in reaching the conclusion that,, if the injury was due to the nature of the bank which was being excavated, and which was equally apparent to all the workmen engaged .about it, the employer is not liable; that, if the accident resulted from the act of Curry in standing on top of the bank, then his negligence was that of a co-
Finding no error in the action of the trial court, the judgment is aeeirmed.