182 Iowa 227 | Iowa | 1917
The first question is: Is there enough evidence to send to the jury whether there was a direction to use said tools for said work, and if so, whether it was negligence to do this, instead of furnishing different tools for that purpose?
As this petition is framed, there is nothing for a jury as to injury caused by handling the ties with improper tools, if there is no evidence that the master directed decedent to use the tools he did use. The evidence is that decedent and the crew of which he was a member did use
2-a.
“The one we were carrying when Rook was hurt was not a heavy tie: two of us could have picked that one up, one at each end, and handled it if we had wanted to.”
The only addition is furnished by certain opinion testimony received against objections, which testimony fairly amounts to this: Answering a question as to what was the usual, customary, and proper tool for a section gang “for taking hold of and carrying” ties, it was answered: “On a section gang where they usually have but a few men, it depends on what they are doing;” and that, in unloading ties from a car, “they usually have a grapple hook.” Further, if the tie is so big as .to need four men to carry it, it is handled with two such hooks, and if thus handled, there is still a chance of hurting the men unless “you shove the tie on the pile perfectly straight;” that “the most practical way would be grappling hooks,” to which is added that the “ordinary tie” could be laid on the pile by two men without such hook. Being then asked whether it was not true that, if four men handled a tie 14 feet long, they wouldn’t need much of anything' to pick it up, it was answered: “Yes, but there is a safe way to do it;” that it would be safer for four men to place a. tie on the pile without tools “than with the bars.” Another witness said that, while the tools that were used might be handy to get hold of, “at the same time it would not be as proper and safe as some other way;” that he would say that a good tool like a pair of ice tongs would be a proper tool; that he had seen such a tool used in that work a number of times; that in his time it was generally customary for section gangs to be furnished with such an appliance, but he does not know wheth
We are of opinion that it does not make a jury question of negligence to show that grappling hooks were not furnished to four men for taking a tie which did not weigh more than 140 pounds, and which, on the plaintiff’s testimony, weighed considerably less, from a jerry car, and putting it upon a pile 2y2 feet high, the top of which was a trifle lower than the bottom of the tie. It was, therefore, error to allow a recovery which did or might include damages sustained while unloading the ties. It is not a question of degree of proof. There was no proof of negligence.
Is there enough evidence to send this allegation to the jury? There were four handles on each end of the car. Sometimes nine men would lift it off — that was when the full crew was present. But as few as four men did it right along. At the time under consideration, decedent and three men were on the end nearest the engine, and three Avere on the other end. Of the seven who lifted the car off, decedent Avas 20 years old, and weighed 155 pounds; the three on the end at which he Avas Avere, respectively, 22 years old, and Aveighed 165 pounds, 16 years old, 5 feet 9 inches tall, and Aveighing 140 pounds, 18 years old, and weight 150 pounds. While it is not so definite, it can fairly be gathered from the record as a Avhole that the three at the other end were of about the same physical standing. At any rate, plaintiff has no evidence that they were weak. After the seven got hold of the car, they .backed it up and set it off, lifted it “right east beside the track,” carried it off the east side of the track, and set it about 3% or 4 feet from the track, “'just on the'edge of the grass line.” At the point where the car Avas taken off, the roadbed is cinders and gravel. A Avitness for plaintiff says:
“'There was not much of a grade from the track down to Avhere Ave set the car; it aauis on a culvert, which Avas very near level there; there was some grade, but not much.”
The one witness — one for plaintiff — who speaks to the weight of the car says he does not know how long it was, nor its exact width, nor the size of its wheels: it could carry 12 or 14 men; it had a one-cylinder engine of 214 to 23/2 horse power; it weighed about 900 pounds. According to this witness, decedent made no complaint after the car was taken off. He was not seen to slip “or twist himself in any particular way” while moving the car, and moved just like the others that were helping carry the car. After the car was set off, decedent worked up to the noon hour, but shortly before that, lie acted as though something was the matter with him, and he didn’t eat any dinner. He then said he thought he hurt his side. Another witness for plaintiff says decedent was not seen to stumble, give way, or bend, and did not indicate that the weight he was carrying was too great for him. But he says decedent said, about 15 minutes after the car was carried off, that his side hurt him, and said nothing about it later, and that he worked a little after lunch time, but worked “like as if he was sick.”
There is opinion testimony which amounts to saying that there is a usual and customary way of removing heavy hand cars from the track. Assume that method was not used here. But there is not an atom of evidence that any-, one in authority demanded or suggested the method that was used, or that it was'not the voluntary choice of the crew'. All there is on the point is that the foreman told the crew to take the car off. A medical witness, answering a
“The law does not require from anyone superhuman wisdom or foresight.” It suffices that, if a. reasonable and prudent 'man had been asked as to whether ■ there was a given danger, he would have considered the question an absurd one. Sikes v. Sheldon, 58 Iowa 744. On thip test, it was not negligence not to anticipate danger of injury from having seven able-bodied men lift a 900-pound car from the track, in the conditions attendant here upon such removal.
“In general, a servant is not entitled to recover damages from his master for injuries received in consequence of straining and overtaxing himself in lifting heavy objects in his master’s service, since the servant is the judge of his own lifting capacity, and the risk of not overtaxing it rests upon him.”
In Haviland v. Kansas City, P. & G. R. Co., (Mo.) 72 S. W. 515, the plaintiff, a railroad émploye, strained his back in loading steel rails onto flat cars, and it is said it nowhere appears from his testimony that the force employed was inadequate, or that he was expected or required to lift more than an ordinary man could lift or shove, or more than he had previously lifted or shoved with safety, or that anything occurred to cause the injury. It was held that he could not recover. And the testimony of an alleged expert, to the effect that, while an ordinary man could lift 200 pounds,- 16 section hands were necessary to lift a rail weighing 600 pounds, was stricken out by the court as manifestly absurd.
In Ferguson v. Phoenix Cotton Mills, (Tenn.) 61 S. W. 53, the plaintiff, a laborer, was employed to wheel wet .cotton on a four-wheel truck. He sustained a rupture in trying to lift the truck out of a drainage hole. He had the help of one other man, had been working only five days, and had never lifted such boxes of cotton. It was held, first, that the hole was obvious, and thé servant assumed the risk. Further, the court proceeds:
“If the wheel of the truck had gone into the hole, and it was the duty of the employe to lift it out, then he cannot hold the master liable for overexerting and straining himself. He is the best judge of his own lifting capacity, and the risk is upon him not to overtax it.”
IV. If an injury due to the negligence of the employer,