168 Iowa 34 | Iowa | 1914
Defendant is a partnership, conducting a bottling works in the city of Red Oak, Iowa, and in its plant it had a machine known as the Crown Soda Capping machine. Plaintiff was employed to work with this machine, and, while in the discharge of his duties, a glass bottle, which he was filling, burst, and some of the pieces of glass struck his left wrist, about four inches above the hand, severing the tendons, arteries, and nerves, and producing what he claims are permanent injuries. It was alleged that defendant was negligent in not properly guarding the machine on the left side thereof, through which the bottles were inserted, and that this was the proximate canse of the injury.
Defendant denied all negligence on its part, alleged that, if the machine was not guarded, it was due to plaintiff’s own fault and neglect, pleaded contributory negligence and assumption of risk, and also pleaded a compromise and settlement with plaintiff for all the injuries he (plaintiff) sustained. In reply, plaintiff denied all affirmative allegations of the answer, and pleaded that the agreement of settlement and compromise was without consideration, and that it was signed under a mutual mistake of fact as to the nature and extent of his injuries, and further alleged that the settlement was not in fact, and was not intended to be in compromise or settlement of anything more than plaintiff’s loss of time. On these issues, the case went to a jury, resulting in a verdict for plaintiff in the sum of $1,000.'
The machine which it is claimed caused the damage is a bottling and capping implement, and had a guard immediately in front of the operator to prevent injury from flying glass ; but on the left side, where the bottles were inserted, there was no guard. The machine is difficult of description, and we here show what we understand to be a photograph of it.
The following testimony shows the nature of the guard and the manner in which the machine was operated:
“The machine stands about four feet high, has a head on it which works up and down with a spring and foot lever. When you push the lever down, it pulls the head of the machine down. You put your bottles in on the left-hand side, and the left-hand bottle is being filled with syrup while the right-hand one is being filled with water. There is a lever on the top which distends the rubber which fits around the neck of the right-hand bottle so that the water can’t get out on either side of the bottle. On this left-hand side is a lever pointing towards me. You turn it around so that it runs the water into-
This witness also testified:
“There was a guard on the market at the time of the injury, to be placed around those bottles to prevent the glass flying from breaking bottles. That fits the kind of machine I was working on. It is an automatic guard. It works on the head of the machine. When the foot lever is put down to pull the head of the machine down, that closes up around the bottle so that it would enclose the bottle, so if one would burst to pieces it couldn’t get away; it would have to stay there; and you take your foot off the lever and let the head of the machine raise, and that opens up. When the head of the machine is up to where it is when you put the bottles in, the guard is open clear back, and when you put the bottles in, and are ready to fill them, and push your foot down on the lever, and pull the head of the machine down to the bottles to fill it, they come shut of their own account, as the head of the machine comes down to the bottle. The guard opens up as the head of the machine raises as yon take your foot off. That is a different guard from the one that was on the machine in question. ... At the time of the accident, I had never seen any of these guards advertised. I didn’t know of either of these guards at that time, but I thought it might be possible to invent something that would go on there and be a guard. I had never worked
With these premises, we go now to the propositions relied upon for a reversal. Our factory act provides that:
Under this section, we have held, contrary to defendant’s assumption in argument, that the statute is mandatory, and that such a machine as that in question must be guarded, and that if it is not guarded, or if the guard is inadequate, or insufficient, this makes a prima-facie ease for the plaintiff; and the burden is upon the defendant to show that no guard was practical which was reasonably calculated to prevent accidents. O’Connell v. Smith, 141 Iowa 1; Kimmerle v. Dubuque Co., 154 Iowa 42.
There is a conflict in the decisions upon the proposition, but the doctrine already approved by us has support in other jurisdictions and is evidently the only one which gives life and efficacy to the statute. See Caspar v. Lewin, 82 Kan. 604, and the authorities cited in Kimmerle’s case, supra.
III. In this connection, and with respect to defendant’s liability, the trial court instructed in part as follows:
“In this connection you are instructed that to properly guard the machine in question would be to provide such a guard as would be fit, suitable, and appropriate to reasonably protect the operator of the machine from being harmed or injured from the bursting of a bottle when he was filling it with gas and fluid in the usual and ordinary course of his running of the machine, so far as practicable, without unreasonably interfering with the efficiency of the machine.
“The burden is on the plaintiff, in the first instance, to show that the machine in question was not guarded in the respects complained of in his petition; and, if you find that the machine was not guarded in the respects complained of by plaintiff, then you will need to determine whether or not it could be further guarded in said respects without materially and unreasonably interfering with the efficiency of the machine. If it cannot be thus further guarded, then it is not incumbent upon defendant or anyone else to place an additional guard upon it.
“You will bear in mind that, while it is required by the statute above set out that machinery must be supplied and equipped with proper guards to protect the operator from injury, the master is not required to furnish machinery which is absolutely safe, so that an accident cannot happen. He is only required to provide proper guarding, that is, fit, suitable and appropriate guarding, as will reasonably accomplish the purpose of guarding, and such as is practicable, and such as will not unreasonably interfere with the efficiency of the machine.”
These instructions were not challenged by exception at the time they were given, and they are the law of the ease.
“Whereas, I, George L. Redington, of the City of Red Oak, County of Montgomery, and State of Iowa, was injured on or about the 6th day of July, 1912, while in the employ of Blue & Raftery, under circumstances which I claim render my said employers liable to me in damages; and
“Whereas, my said employers deny any liability for said injury; and whereas, both parties desire to compromise, and have agreed to adjust and settle the matter for the sum of $30:
“Now, therefore, in consideration of said sum, which it is hereby acknowledged has been to me or in my behalf paid
“Witness my hand and seal this 17th day of August, 1912, at Red Oak, Iowa.
“ George Redington. [Seal.]
“W. J. Roberts,
“F. J. Brodby,
“Witnesses.”
This is the release pleaded by defendant in its answer. Plaintiff claimed and introduced testimony to show that this was executed through mutual mistake as to the character of his (plaintiff’s) injury; that it was not given for money at that time paid, but as a receipt for part payment of what was the equivalent of wages, in order that defendant might settle with an indemnity insurance company; and that all he was being paid was for loss of time. One of the defendants testified that the payment of the $30 was for two weeks’ work, and that was all he had in mind in taking the release. There is also testimony to show that both parties regarded the injury as temporary, whereas- the testimony now shows that it is permanent. The trial court gave the following instructions with reference to this release:
“To.avoid the written release in question and warrant you in holding it for naught as a defense in this ease, the burden of proof is upon the plaintiff to show by the evidence the following matters: That, when the release in question was executed by the plaintiff and delivered to the defendant, that this plaintiff and the defendants entered into such compromise and settlement under a mutual mistake of fact; that both parties were wholly and unconsciously ignorant of the nature and character and extent of plaintiff’s injury, and that it was not contemplated by the parties, or either of them, that the settlement and compromise' compensated plaintiff or was in fact a
“The burden is' upon the plaintiff to show such matters by the evidence. Ordinarily, in a civil action, such as this is, the parties on whom the burden of proof is cast is only required to make proof by a fair preponderance of the evidence. In this case, the plaintiff must prove the foregoing matters by a preponderance of the evidence, and the character of the evidence must be clear, convincing, and satisfactory concerning the above-mentioned matters so necessary to be proven, and that the agreement and release in question did not truly contain or express the real agreement of the parties.
“If all of the above-mentioned matters are thus shown, the release in question will be avoided, and you will hold it
The money paid is either to be treated as a mere gratuity or as compensation for known and acknowledged injuries; and in neither case is a return necessary, where the written release is executed by mutual mistake as to the nature and character of plaintiff’s injuries, and was not intended to cover more than temporary disabilities. In other words, what plaintiff needs is a reformation rather than a rescission of the instrument of settlement or release.