151 Iowa 371 | Iowa | 1911
The defendant company is a corporation operating a brick and tile factory in Franklin county, Iowa, and defendants Carhart and Stewart are, respectively, superintendent and foreman of the plant, having full power and management thereof. Gillott began work for defendants in August of the year 1908, but was not required to do any work with machinery or under the buildings until January 25, 1909, at. which time he was put in charge of a hoisting machine operated by defendant. He received the injuries from which he died February 2 of the same year, some six or seven days after he began work. Prior to beginning work for defendant, he had been ■ a farmer all his life, and when directed to work about the hoisting- machine he was given no particular instructions and was not warned regarding .the dangers attending the work. At the time of receiving his injuries, Gillott was attending to his duties about the hoisting machine, which is thus described in the testimony:
Bor a better understanding of this machine we attach a photograph which shows the drum, the shaft, and the set screw:
The set screws were entirely unguarded, unless the angle bar, a part of which is shown in the photograph.
As already stated, Gillott was not directed as to bow' to do the work of unwinding or winding the cable. Appellant says that be was ordered to do it from tbe rear of tbe machine; but this is an evident mistake.
Section 4999-a2 of tbe Code Supplement of 1907 reads as follows:
It shall be the duty of the owner, agent, superintendent or other person having charge of any manufacturing or other establishment where machinery is used, to furnish and supply or cause to be furnished and supplied therein, belt shifters or other safe mechanical contrivances for the purpose of throwing belts on and off pulleys, and, wherever possible, machinery therein shall be provided with loose pulleys; all saws, planers, cogs,- gearing, belting, shafting, set screws and machinery of every description therein shall be properly guarded. No person under sixteen years of age, and no female under eighteen years of age shall be permitted or directed to clean machinery while in motion. Children under sixteen years p£ age shall*376 not be permitted to operate or assist in operating dangerous machinery of any kind.
The trial court instructed upon this matter of guards^ as follows:
(4) It is the law of this state that it shall be the duty of the owner, agent, superintendent, or other person having charge of any manufacturing or other establishment where machinery is used, to provide all saws, planers, cogs, gearing, belting, shafting, set screws, and machinery of every description therein with proper guards, and a failure to do so is negligence on the part of such owner, agent, superintendent, or other person having charge of such manufacturing or other establishment where the machinery is used.
*378 (5) So, in this case, if you find that the plaintiff has proven by a preponderance of the evidence that the defendant company did own and operate a plant where machinery was used, and that the said Malcolm Gillott was employed therein by the said company for the purpose of working in the plant of said company with, or at, or about a machine where there were set screws and a revolving shaft used in connection therewith, and that said set screws and shaft were unguarded, such conditions existing would constitute negligence on the part of the said defendant company, rendering it liable for any injury to the said Malcolm Gillott resulting from his coming .in contact with the said set screws or revolving shaft, if you further find that the plaintiff has proven that the said Malcolm Gillott did not by his own negligence contribute to the said injury, or that the defendant has not proven that the said Malcolm Gillott did assume the risk of such conditions.
(8) The owner of premises on which machinery with set screws and revolving shaft is used or operated should avoid danger to his employees working about or with such machinery by guarding the set screws and revolving shaft used therein. The employer is not required, however, to insure- his employee an absolutely safe place to work, and the duty to furnsh a safe place is performed when the employer, has used all reasonable care and diligence to make the place safe; but such reasonable care and dili'gence would require the employer to fully comply with the requirements of the law.
(9) The burden is upon the plaintiff in this case to establish by a preponderance of the evidence the claim that set screws in question and the revolving shaft were not guarded as required by law, and it is for you to determine from all the evidence before you whether or.not the plaintiff has sustained this proposition. If the plaintiff has failed in this, he can not recover, and you should find for the defendants.
This is challenged because of the reference to the instincts of self-preservation. As there were no eyewitnesses of the accident, the instruction is correct unless the physical facts, taken in connection with the other testimony, show without question that the deceased could not have received his injuries except he were in a position where he had no right to be or in such a position that he must be held guilty of contributory negligence in assuming that "position. The testimony shows that deceased must have been in front of the machine or have reached over the end of the shaft in order that his sleeve may have been
VI. Upon the question of damages the court gave the' following instructions:
(14) If you find for the plaintiff, you will determine from all the evidence before you what amount you will allow him as damages, resulting to the estate of the deceased by reason of his death, and, in determining what amount you will so allow, you should take into consideration the age of the deceased at the time of his death, his occupation at said time, the wages he was and had been earning, the condition of his health at the time, and his ability, if any, to earn ■ money, his expectancy of life, and all these in connection with all the evidence before you, and determine therefrom the probable pecuniary loss to the estate of the deceased caused by his death, and allow the plaintiff such sum, and only such sum, as will compensate -the estate for such loss.
This is not complained of; but it is argued that error was committed by the court in refusing to give the following request made by defendant:
(2) If under the evidence you find that plaintiff is entitled to recover, you will then proceed to determine
The witness had been speaking of the angle bar to which reference has already been made, and, if it had been such a contrivance as to operate reasonably as a
We have gone over the record with care, and, finding no prejudicial error, it follows that the judgment must be, and it is, affirmed.