186 Iowa 137 | Iowa | 1919
I. The defendants are contractors and builders, and had contracted and were preparing to lay a concrete floor. The plaintiff was employed in this work as a helper, and was under the direction of a foreman. Just prior to the time of the injury, the foreman directed plaintiff to assist other employees in clearing away and carrying off old boards and other rubbish lying on the floor. This was required, to prepare for laying said cement floor. Upon this direction, the plaintiff and other employees engaged in carrying away said boards and rubbish. While they were so engaged, they lifted the rear end of an old door, lying flat on the floor, and having the appearance of having been used as a mortar board. A fellow employee lifted the front end, and, when all stepped on with this door, plaintiff stepped directly into an old well concealed beneath said door. Neither plaintiff, his fellow employees, nor the defendants had any actual knowledge that there was such an opening beneath that door. Neither had any reason to anticipate the existence of the said hidden opening, and, of course, plaintiff was never warned of its existence. This was the evidence when plaintiff closed his case. Thereupon, the defendants moved for a directed
II. For the sake of argument, we may concede the statement of 26 Cyc. 1241, that:
That does not touch what is to be the rule where neither has the better means, or where the danger is obvious to neither. The text declares further that:
“Where it does not appear that the master knew, or with ordinary care ought to have known, of the defect which caused the injury, and it does appear that the servant had equal means with the master of ascertaining its existence, the servant cannot recover.”
If this may be construed to shift the ascertainment of latent and hidden dangers from master to servant, we cannot endorse it. It is hornbook law that the master is under duty to furnish the employee a reasonably safe working place. Winslow v. Commercial Bldg. Co., 147 Iowa 238. That there is such an obligation of necessity carries with it a duty to ascertain that the place is safe. Since that is the duty of the employer, he may not escape liability by an insistence that the employee may not recover unless he performs the duty placed upon the employer. The master is bound to take reasonable care to have the place in which he directs his servant to work reasonably safe for the doing of the work, and free from latent and concealed dangers. Leuteritz v. Ice C. & S. Co., 82 N. J. L. 251 (83 Atl. 176). This case holds that, in the absence of knowledge to the contrary, a servant has the right to assume that his master has exercised due care and diligence to fulfill the obligations imposed upon him by law, and, therefore, does not assume the risk consequent upon the failure of the master to discharge his duty. That duty is to take reasonable care to have the place in which he directs the servant to work reasonably safe for the doing of the work, and free from latent and concealed dangers. It is said in Cin
“It is, of course, a conceded proposition that it is the duty of an emplov'"||j^¿uru ish suitable implements for the use of his employee in the performance of his duties, and a safe and suitable place at or in which to prosecute the work assigned him to do. * * * An employee has the right to repose confidence in the prudence and caution of his employer, and rely upon the safety and suitableness of implements or appliances with or about which he is required to work, and that the place assigned him to work is safe from any hidden or undisclosed perils which are not open and obvious to his senses.”
To like effect is Fitter v. Iowa Tel. Co., 143 Iowa 689; Calloway v. Agar Packing Co., 129 Iowa 1; and Western Stone Co. v. Muscial, 196 Ill. 382 (63 N. E. 664). The most* that can be found in Stone v. Oregon City Mfg. Co., 4 Ore. 52, is that an employer who provides machinery and controls its operation must see that it is suitable, and if an injury ,to the workman happens by reason of a defect unknown to the latter, and which the employer, by use of ordinary care, could have cured, the employer is liable for the injury. The duty of inspection is the duty of the master, and not that of the servant. Ocean S. S. Co. v. Matthews, 86 Ga. 418 (12 S. E. 632); Chesapeake & N. R. Co. v. Venable, 111 Ky. 41 (63 S. W. 35). The master and vice principals, such as foremen, have the duty of making and continuing inspection. Wise v. Lillie, 84 Kan. 86 (113 Pac. 403, 404); Winslow v. Commercial Bldg. Co., 147 Iowa. 238; Houston v. Brush & Curtis, 66 Vt. 331 (29 Atl. 380).
One argument by appellee assumes that the master and the servant stand on an equal footing: i. e., both have the like duty of inspection and ascertainment. But this assumes, not only that both have equal knowledge and means
If all this be so, lioiv can it be said that the servant has a duty of inspection, and that, if he has as good an opportunity to ascertain as the master, the servant may not recover ?
2-a
It can scarcely be that the duty of inspection and of ascertaining whether the working place is safe is limited to ascertaining whether or not the working place is free from obvious dangers. If that were the limit ,of .the rule, it would have little to operate upon. Ordinarily, the servant would be in no danger from such obvious perils, even if the master took no steps to ascertain whether such existed. It must be, then, that the duty of providing a safe working place includes reasonable care in ascertaining whether such place has any hidden or latent dangers. And that there is such duty is the settled law. See Clark v. Union I. & F. Co., 234 Mo. 436 (137 S. W. 577), wherein it is held to be a continuing duty on part of the master and of his foreman to make inspection regarding hidden or secret dangers. See, also, Western Stone Co. v. Muscial, 196 Ill. 382 (63 N. E. 664); Winslow v. Commercial Bldg. Co., 147 Iowa 238.
We find but one discordant note. In Skellenger v. Chicago & N. W. R. Co., 61 Iowa 714, the main question was whether there had been a negligent disregard of a signal given the engineer by an injured brakeman. But the condition of a draw bar was also in the case. Speaking to that, it was casually remarked that, “as to driving in the draw bar, there is no evidence whatever that any of the officers of defendant had any knowledge that the draw bar was in any way defective, or that it was defective in its original construction,” and that “without some evidence on this question, there could be no recovery for that defect, if there was any defect.” If it is to be treated as authoritative, it makes a most startling pronouncement. Followed to its logical conclusion, a railroad earlier corporation might equip its cars with appliances so defective as to be a trap for life and limb, and yet it would escape liability, as matter of law, unless an injured employee were able to show that the officers of the corporation had actual knowledge of the defect. No support for such a rule is afforded by Arcade File Works v. Juteau, 15 Ind. App. 460 (40 N. E. 818). There, the plaintiff alleged that the employer did have knowledge, and the case turns upon requiring the proof to meet such plea. The Skellenger case runs counter to all authority. And it makes no reference to Greenleaf v. Illnois Cent. R. Co., 29 Iowa 14, which holds that, if a car, when constructed, lacks appliances necessary for the safety of the employees, and continues in that condition when put into use and kept there, it is unnecessary to show any further knowledge of the defect on part of defendant, in order to fix its liability. We do not find that the Skellenger decision has ever been cited.
V. Much of all this is applicable to the question whether a directed verdict was justified by contributory negligence on part of plaintiff. Appellee urges it was free from negligence, as matter of law, because, in reason, it could not have anticipated the existence of the well. Is it not somewhat inconsistent to claim, too, that plaintiff was guilty of negligence, as matter 'of law, in failing to anticipate and discover the well ? On the question of contributory negligence, it must eyer be kept in mind that, since the jury
We are constrained to hold that it was error to instruct a verdict, as was done, and that tlie questions whether defendant was negligent, and whether plaintiff contributed to his injury by his own negligence, and assumption of risk, were at least questions for a jury. On this appeal, we do not enter upon wliat, if anything, is settled as matter of law. See Ney v. Eastern Iowa Tel. Co., 185 Town 610. — Reversed and remanded.