130 Iowa 538 | Iowa | 1906
The defendant corporation owns and operates a foundry and machine shop in the city of Marshall-town, Iowa, and at the time of the accident in controversy the plaintiff was an employe in its service in and about said business. The plaintiff entered said employment on October 5, 1902. For a period of about four days he was kept at work in one of the buildings cutting rivets from old bridge beams and moving irons from place to place. On the fifth day of his service he was directed by the foreman to go into another shop and “ help the blacksmith hold a rail.” The blacksmith was engaged in cutting steel railway rails into short lengths. The process employed appears to have been to lay the rail upon an anvil and while plaintiff held it in position and the blacksmith held the cutting tool, a third person or striker delivered the blows with a heavy sledge. While plaintiff was thus engaged, and about three and a half hours after entering the shop, a flying piece of steel,
I. This case has already been once before this court when a new trial was ordered on account of error in the introduction of testimony. Vohs v. A. E. Shorthill Co., 124 Iowa, 411. On that appeal the question whether the facts shown were such as to justify a finding that the work was of a character to expose plaintiff to peculiar dangers, which, as an inexperienced workman, he could not reasonably have recognized and appreciated, thereby casting upon his employer the duty to warn and instruct him in reference thereto, was ruled by us against the appellant’s contention and in the absence of any material change in the issues or testimony that decision must be regarded as the law of the case.
This is not a case where the latent danger was not naturally incident to the employment,' nor did it arise from the fault or negligence of third persons. In all such cases it is obviously just that the master should not be held liable until the danger has been brought to his attention or until in the exercise of reasonable care and oversight of the business he ought to have discovered it. • The danger in the present instance, so far as appears, did not arise from any defect in the machinery or tools employed, but was inherent- in the work of cutting hard steel. The testimony was abundant that the flying of flakes or splinters of steel
It must also be remembered that this witness was testifying from his personal examination, knowledge, and treatment of the plaintiff’s injury, and there was -no occasion for propounding hypothetical questions or to assume or state any especial fact or series of facts as a foundation for the inquiry to which answer was sought.
We canno-t extend this opinion to discuss other objections to evidence. We have examined the record as to each point made in this respect, and think the exceptions cannot be sustained.
Quinn v. R. R. Co., 107 Iowa, 710, and Christy v. R. R. Co., 126 Iowa, 428, are cited. But these authorities are not applicable. There is in the answer no plea of assumption of risk under the rule of the Quinn 'Case. This term as used in the books is applied to two very different conditions or states of fact. One has reference to the risks naturally incident to work which the servant undertakes to do, and the other has reference to risks or dangers arising from the employer’s negligence, the peril of which the servant assumes when he remains in the employment after he knows or as a reasonably prudent person ought to know the dangers to which he is thus exposed. The assumption of risk first mentioned need not be pleaded,, and, if pleaded, it neither adds to nor detracts from the issues as they would have stood upon a simple de* nial of the petition. The assumption of a risk of the latter kind is an affirmative defense, and must be. pleaded. As we have already said, it is not here pleaded. The allegation that “ plaintiff assumed the risk of injuries upon entering said employment ” is simply the statement of the legal proposition as to risks incident to the employment. Indeed if a proper affirmative plea of assumption of risk of negligence had been tendered we think there is no evidence in the record to justify its submission to the jury. This subject has been quite'fully discussed by us in a very recent case, and we
V. It is also contended that the verdict is not supported by the evidence, and that the verdict for damages, $2,000, is excessive. As to the sufficiency of the evidence we need add nothing to what has already been said. On the former appeal, upon substantially the same evidence, it was held there was no error in the order of the trial court overruling a motion to direct a verdict in appellant’s favor. There is nothing in the present record requiring a different conclusion.
We find no reversible error in the record, and the judgment of the district court is affirmed.