141 Iowa 701 | Iowa | 1908
It is charged in the petition that defendant was negligent in not furnishing plaintiff a reasonably'safe place to work, in not furnishing him proper tools and appliances with which to work, in not discovering and repairing a defect in the floor of its plant in which plaintiff was employed, in failing to notify plaintiff of the dangerous condition of the floor, and in requiring plaintiff to work in a dark and dimly lighted room, which had a defective floor, without informing him of the dangers incident thereto. The defenses have already been stated. In passing upon the questions involved on this appeal, we must take that view of the testimony most favorable to plaintiff, for the case was disposed of on defendant’s motion for a directed verdict. At the time of the accident plaintiff was twenty-nine years of age. He had worked for defendant at odd times for a period of four years. Just before his injury he had been in defendant’s employ about six weeks. He was employed about the manufacture of what are called “white bronze monuments,” and on the occasion of his injury was doing what is known as “sticking and pouring,” with the promise that as soon as the work was brought up he should do the “lettering” on the monuments. One Groth, a foreman of the defendant, employed the plaintiff, and he was succeeded in the foremanship by one Topliff. The room, in which plaintiff worked was a large one,, the exact size of which does not appear in the record; but it was moré than one hundred feet one way by sixty or more the other. There are windows in the south and' west ends of the building eight by three and one-half feet, but some of them were dirty atld cut off by a cheese cloth,, which obstructed about one-third of the light. Near the west end
1. Master and servant: safe place to work: assumption of risk: evidence. When I was injured I was working at the tinning bench tinning some castings. We had a large piece about, I don’t really know the exact size of it, but it was about five feet by four, about that high (indicating), like a frame, and had already .poured that. That was to be the bottom of a. monument, and there was another part to go on top of it. Those pieces had been taken up to the finisher’s bench. We finished them there first; done the filling on them and smoothing them, and Mr. Topliff, the foreman, took this piece I was on when I got hurt. I-Ie brought it down and set it down near the fusing bench. He called me then, and we took a sort of chainhack and lifted the top over on it to see how it would fit, and we lifted it off again, and Mr. Topliff told me to go ahead and finish. The fusing bench was about 20 inches from where he had set this piece, and the acid which was used to put on before putting the solder on was sitting on that bench. I went to reach for the acid. I was in a hurry, and the work had been hurrying us up, and I was anxious myself to try to help them out and get orders finished up. I stepped over into the center of that piece and made another step, intending to reach for the acid bottle and turn around and stay inside of it and put the acid around and go out and get my soldering iron, but, instead of stepping on solid floor, as I thought I would, I went into a hole and caught my knee, and went to sort of throw the other leg over at the time I set that foot down, and fell into the hole. My leg went down into the hole and caught me aboiit*705 the lcnee. The hole was just about wide enough to catch my knee. I fell, and it caught me by the knee.
Plaintiff also testified to the following:
Before my injury I had a talk with the foreman respecting the condition of that place. The first time we tallced of the holes in the floor was during the month of May. I can’t remember. It was along about the latter part of May. Mr. Topliff was the foreman then. The next time I talked with him was about a week later. I talked with him three times about that. The third time was about — it was during the same week ■ I got hurt, three or four days before I got hurt. I- had a big monument I was working on, and I called a couple of the other employees to help me lift it, and when they went to lift it one of the boards cracked, and Mr. Topliff happened to be passing, and I turned around to him and I said: ‘John, you will have to get this floor fixed up now before some of us get hurt.’ He said: ‘All right. I have been intending to fix it all along, but I will fix it as soon as I get time.’ I never knew of any custom about every man repairing the floor. I was never required or directed to do any carpentering there. There was a carpenter there that did the carpenter work. I continued to work after I discovered that the floors were defective and that there were holes in the floor, because Mr; Topliff said he was going to fix it. I continued to work, relying on his promise to fix it.
]jle also testified regarding the condition of the light:
Q. I will ask you if you remember on this afternoon that you were injured what the condition of the interior of that factory was at the place where you were injured with respect to light, whether it was dark, or medium, or how? A. It was very gloomy. Q. What was the general condition of the interior of the factory as to being-light or otherwise? A. It is generally rather dark. It wasn’t real light. It was light- enough, you could see what you were doing and see your work, but it wasn’t real light. It wasn’t as bright as it is in this room. Q. State whether*706 or not artificial lights were used in the factory in the daytime. Let me modify the question. State whether or not it was customary among the workmen there on dark days and during the daytime, midday, to usé candles or other artificial lights when engaged about their work. A. I have known them to use candles.
On cross-examination the witness stated: That the hole in the floor was about twenty .inches south of the bench at which he worked; that there were windows all along the entire south wall of the building and four or five in the west wall of the size hitherto mentioned, that the light from these windows shone all around the room; that the ceiling of the building was something like twelve feet in height; and that there were no partitions in the room in which he worked. It also appeared from his cross-examination that the bench at which plaintiff was working was from twelve to twenty feet from the south wall and at the west end of the room. The accident happened about three o’clock in the' afternoon, and on cross-examination the witness gave this account of it:
The hole in the floor was about twenty inches south of the bench I worked at. I stepped over in the center of the base, and went to step over on the other side of it to reach for the acid, and then I stepped in the hole. The base was almost directly south of the hole. The base was about twenty-twp inches south of the bench, and the hole was about twenty inches south of the bench. The base was lined right up with the hole. That is the reason I didn’t see it. I didn’t think of the hole at that time, because I didn’t put the work there. I had not been doing my work at that place. I had always been avoiding that place. The bench stood the long distance north and south. I always put the monuments on the bench in the way that would be-handiest, a long tall monument lengthwise.
The following testimony shows how the hole came to be in -the floor:
*707 Q. Now, Mr. Miller, this hole being about twenty inches south of the bench, what caused the hole in the floor ? A. Well, just the natural wear and tear. Q. Sliding these monuments' off the bench onto- the floor, the point of the base hitting the floor finally cut. it through ? A. Yes, partly. Q. What else besides that ? A. , Age, rotten. Q. How big was this hole ? A. Oh, I don’t know. I never measured the hole. It was big enough for my foot to go in. Q. A small hole then? A. Yes. Q. Four or five inches wide and probably four or five or six inches? A. I should say about that, yes.
This hole was in existence when plaintiff began work for defendant the last time and he testified as follows:
I first called Mr. Topliff’s attention to ’the hole in the floor in the latter part of May, somewhere along about the 23d, 24th or 25th. I again called his attention to the floor in about a week. It was before Decoration Day, about the 28th or 29th. I again called his attention to the floor about three or four days before I got hurt, sometime during the same week. I said: ‘John, this floor is in awful bad shape around here. It ought to be repaired. Don’t you think I had better fix it up a little ?’ (T'opliff) Well, we are too busy now. Go ahead with your work, and I will fix it up myself.’ This -conversation took place by the forge. He said he would fix it as soon as he got time. At the second and third conversations he said about the same things. Q. And that was in response to a request that you fix it, and he said no, he would, you go ahead with the work and he would fix it when he got- time. Is that what was said? A. Yes, sir. Q. What was said at the third conversation? -A. Well, that- was referring to that big monument. A large monument on the floor — there was one board sort of cracked. It broke, sort of split, and I turned around to Mr. Topliff and said: ‘When are you going to fix this floor? It is dangerous. It will have to he fixed.’ He said: ‘I have been wanting to do that. It seems like I can’t get time, but I will fix it up.’ Q. Well, he stated the same as he had before, as soon as he got over with the rush he would fix it, did he? A. Yes, sir. The portion of the floor that cracked that day when*708 the heavy monument was rolled on it was near the piace where I was hurt. It was not the same place.
Aside from a little more testimony regarding Topliff’s promise to repair the defect in the floor, the effect of which was that no definite time was fixed for the repairs, and that plaintiff expected to quit when his week was out if the floor was not fixed, this is substantially all the testimony material to our inquiry. From this it is manifest that there was ample to take the case to the jury upon the question of defendant’s negligence in the respects charged in the petition. This testimony was also sufficient to- take the question of assumption of risk to the jury; that is-to say, it was a fair question for it to determine whether or not plaintiff was justified in remaining in defendant’s employ after the promises of repair were made, and as to whether or not he should have concluded that defendant, through its agents, by reason of the nature of the promises and the time that elapsed after they were made without performance, had concluded not to comply with its promises and make the repairs. This view has support in the following, among other, cases: Buehner v. Creamery Co.. 124 Iowa, 445; Huggard v. Glucose Co., 132 Iowa, 724; Wible v. R. R. Co., 109 Iowa, 557; Foster v. R. R. Co., 127 Iowa, 84.
Of course, if there were any testimony tending to show that plaintiff, in view of the promise made to him by defendant’s foreman, believed that the defect had been remedied we should be constrained to hold that the question of plaintiff’s contributory negligence would have been for a jury under all the facts disclosed; but nowhere does plaintiff testify that he believed that the foreman had complied with his promise and repaired the defect. The excuse is that he forgot the presence of the hole, and lie evidently relies upon this forgetfulness as excusing him. That it does not is clear, not only from the authorities, but on principle as well. There is a manifest distinction between forgetfulness and an attempt to avoid the dangers of a known defect, and a like distinction between forgetfulness and reliance upon a promise made by one with authority to remedy a known defect. Forgetfulness is negligence, while reliance upon the fulfillment of a promise
Without more, it is enough to say that the trial court did not err in directing a verdict for the defendant.
The judgment must be, and it is, affirmed.