Meyer v. Boepple Button Co., 112 Iowa 51

Meyer v. Boepple Button Co.

112 Iowa 51 | Iowa | 1900

Siiekwin, J.

1 The plaintiff was employed in the defendant’s button factory, and while passing from his workroom to a closet, some distance therefrom, he stepped into a barrel of hot water used for softening the shells from which the buttons were made, and one of his legs was scalded. The barrels were in the ground, with their tops flush with the surface thereof. No covering was over them, nor was there any guard around them. The plaintiff knew the situation of the barrels and their contents, but claims that while passing near them his attention was suddenly attracted by a large and vicious dog belonging to the defendant, and kept on the premises as a watchdog, and that while his attention was so taken the accident happened.

2 The issues in a ease should be clearly defined by the court in its instructions to the jury, but it is not necessary iha.t they be grouped and stated in separate paragraphs of the charge devoted to that purpose alone. It is enough if the instructions as a whole point out the entire issue in the case, and this was done in the case at bar. Sillz v. Insurance Co., 71 Iowa 710; Walrod v. Webster County, 110 Iowa, 349. There is such evidence in support of the allegation of negligence on the part of defendant, and of want of contributory negligence on the part of the plaintiff, that we cannot disturb the,judgment on account of want thereof.

*533 The question of the assumption of risk by the plaintiff, if in the case at all, was fairly and fully covered by the instructions given, and there was no error in refusing to give those asked by the defendant on this subject.

The points in the other instructions asked by defendant and refused were sufficiently covered by those given by the court as its own.

4 The seventeenth instruction given by the court is in the language following(17) Were the actions and conduct of the dog, at the time of the accident, outside of, and foreign tü', and not embraced in, the risks assumed by the plaintiff as an employe of defendant? And, if you find they were extraneous to such risk, and of such a nature they could not reasonably be foreseen or anticipated ■by him, were -they, under the evidence before you, of such a character as would reasonably cause alarm or fright to such a degree in the plaintiff, as a man of ordinary caution, prudence, and nerve, as to draw liis attention to the dog, and to catise him to forget the hot-water barrels before him, and involuntarily step into one of them? If you answer in the affirmative, your verdict should then be for the plaintiff.” It will be seen that the court therein omitted the necessary element of negligence on the part of the defendant, and of the want of contributory negligence on plaintiff’s part, and, in effect, directed a verdict for the plaintiff upon the findings alone that the a«ction of the dog was no part of the risk assumed by the plaintiff and caused the accident in question. Plaintiff had no cause of action against the defendant except upon proof of negligence in placing and maintaining the barrels in the position they were, and upon proof of no negligence on his part, and these were questions of fact instead of law, and. should have been incorporated in the positive in-, struction given, for the jirry to determine. Quinn v. Railway Co., 107 Iowa, 710. We discover no other matters *54demanding attention. For tbe error pointed out tbe case is REVERSED.

Granger, C. J., not sitting. .