160 Iowa 541 | Iowa | 1913
The bucket was supposed to be heavier on one side than it was on the other, and it rides a 2x6 made on purpose for that business up to a certain point, then turns bottom side and throws the contents out. If the bucket is carried say four inches above the 2x6, it will tip bottom side up.
I was watching the bucket, and the man operating the engine was watching me for the signals. I recall the bucket that was being hoisted just before this accident. I was at that time standing in the same place and giving the same character of signals. When we started out with the bucket I watched it as long as I could watch it; then I lost track of it, and hollered to Mr. Boyd to shut it down; then I caught a glimpse of it again and told him to go ahead; the minute he started I couldn’t see it again;'then I knew something happened. I heard the crash and could feel a little cement coming down my way. I hollered, ‘Look out boys, there is a plank falling.’ I could see that on the outside of the tqwer, between that and the sky, anyway there was an object there I could see, and I hollered, ‘Look out’ and ran under the building. I think the plank that fell was the one that killed the boy. I saw him afterwards out in the street, where I went immediately. The plank was lying near the boy, The plank was knocked off just above the hopper. The plank was nailed across the tower, spiked across, and it was the swing of the bucket when it tipped that knocked the plank off of the tower. The bucket could not turn bottom side up unless it was hoisted above the 2x6 that held it in position, or unless it would catch something. I do not know how far above this 2x6 this plank spiked across the tower.
The negligence alleged was that defendant “caused said hoisting apparatus to be operated at a time when it was impossible, by reason of darkness, to properly operate and control said hoisting engine, cable, and bucket, and by reason of such failure to properly control said hoisting apparatus, said plank was thrown from said tower.” The hoisting en
The decedent, a boy under twelve years of age, had been at his father’s saloon on Sycamore street a block or two south a few minutes, and being directed to go home so that his mother-would know where he was, said “Good-bye, papa,” and went along the street hauling a toy wagon. "Whether he passed under the barricade, if any there was, or along the sidewalk and turned into the street near the brick pile, was
But this does not relieve the defendant from exercising care commensurate with the danger in using the instrumentalities temporarily located in the street, and if because of the negligent operation of the bucket in the tower injury resulted to plaintiff’s intestate, causing his death, and this without fault on his part, recovery will not be denied because of the tower being in the street.- Sycamore street was one of the principal thoroughfares of the city, and aside from defendant’s actual knowledge that pedestrians were passing to and fro frequently, it was charged with notice that the street might be so used, and in the care and caution to be exercised by it to guard against injury to passing travelers the rule is not different from that exacted from the owners of buildings abutting on the highway in guarding against objects falling therefrom; that is, the highest degree of care is required. See Connolly v. Des Moines Ins. Co., 130 Iowa, 633; Dingley v. McDonald, 124 Cal. 90 (56 Pac. 790); Rosenhain v. Galligan, 5 App. Div. 49 (38 N. Y. Supp. 713); Atchison v. Plunkett, 8 Kan. App. 308 (55 Pac. 677); Butts v. National Exchange Bank, 99 Mo. App. 168 (72 S. W. 1083). See St. Louis Iron Mountain & Southern Ry. Co. v. Hopkins, 54 Ark. 209 (15 S. W. 610, 12 L. R. A. 189); Armbright v. Zion, 108 Iowa, 338.
The witness was also allowed to testify that he had acquired a home worth $4,000 or $5,000. This may have tended in some measure to corroborate the testimony as to the wages he had earned during the years past, and cannot be said to have been prejudicial error, especially in view of the circumstance that defendant brought out the fact on cross-examination that he also had $4,000 or $5,000 on deposit in a bank. This evidence might well have been omitted, but we are unable to see where it could have worked any prejudice to the defendant.
The instructions refused, in so far as correct, were embodied in those given, and, discovering no error in the record, the judgment is Affirmed.