Aga v. Harbach

117 N.W. 669, 140 Iowa 606

Opinion

McClain, J.

— The facts as to the employment of the plaintiff by the defendant are quite fully stated in the opinion of this court on a former appeal in which a judgment on a directed verdict for defendant was reversed. See 127 Iowa, 144. The numerous questions presented for determination on this appeal by defendant from judgment on a verdict against him may be conveniently disposed of by considering the case with reference to the following questions: .Was plaintiff an employee of the defendant in such sense that defendant owed him the duty of furnishing a safe place to work, and warning him of dangers not obvious ? Was defendant’s negligence in the discharge of these duties the proximate cause of plaintiff’s injuries? And did plaintiff assume the risks of defects in the electric appliances, if any, by reason of which he received his injuries?

i master and stítutésT ¿Ity of master. I. As to the employment of plaintiff by defendant, the evidence is substantially the same as on the former trial, and little need be added to wbat was said in the opinion on' the former appeal. As pointed out that opinion, plaintiff was secured hy one j3oehieXj the engineer in charge of the machinery in the engine room of one of defendant’s buildings, to act as his substitute in view of a proposed temporary absence, and this employment was under the authority and with the knowledge of defendant’s superintendent having supervision of the general -operations of the factory. The defendant was therefore charged with knowledge that plaintiff was entering into his employment to perform duties in the engine room, and defendant owed to him the same duty as he owed to any employee engaged for that purpose. Wilson v. Sioux Consolidated Mining Co., 16 Utah, 392 (52 Pac. 626); White v. San Antonio Waterworks Co., 9 Tex. Civ. App. 465 (29 S. W. 252). This duty involved furnishing to plaintiff a safe place to work and warning him of any dangers incident to the employment ’ not obvious to the employee. That plaintiff was not charged with knowledge of dangers which were in fact known to Boehler, for whom he was substituted, and that duty to warn did not rest upon Boehler, but upon the defendant acting through his superintendent, was practically settled by what was said in the former opinion. Aga v. Harbach, 127 Iowa, 144.

2. Same: negligence • evidence: submission of issues. II. There can be no serious controversy as to the negligence of defendant in failing to provide a safe place to work. In performing his duties about the machinery in his charge, plaintiff was required to use an electric light at each of two places in the r0om in which he was employed. At each of these places was a socket connected by wires with the incandescent lighting system of the building. But only one bulb was provided, ancL it was necessary for plaintiff, as it had been the custom of his predecessor Boehler, to detach this bulb from one socket, and attach it to the other from time to time as lie required light at these different places. The brass portion of this bulb was not insulated, and the insulation was also worn off from the wires so that, when plaintiff took hold of the bulb to- detach it from one socket to remove it to another, he was likely to receive a slight electric shock from the lighting current. So long as the current was that usual for supplying light by means of incandescent bulbs, there was no serious danger of injury, but the evidence tends to show that, when on one occasion plaintiff attempted to remove the bulb from the socket to- which it was attached, a strong charge of electricity passed through his body, which so burned his flesh that he was most severely and permanently injured. As the evidence tends to show want of insulation on the brass part of the bulb and the wires, and, indeed, tends to show that the whole wiring of the room in which plaintiff was employed was defective and out of repair, and not provided with rosettes or small fuses, there can be no question of the sufficiency of the evidence of defendant’s negligence to take the case to the jury if defendant was charged with knowledge that the defective condition of these appliances was likely to cáuse injury. It may be conceded that, so long as the lighting wires were charged with the usual voltage of not to exceed 110 volts, there was no danger of serious injury resulting from defects in insulation; but defendant was charged with knowledge that such electric lighting wires drawing electricity from a supply wire carrying an extremely dangerous current of one thousand volts, as in this case, may through defects in the transformer, or in other ways become charged with a much larger voltage than that which it was intended to carry, and reasonable care for the safety of employees made it the duty of defendant to protect the employees by proper insulation against such hazard.

3‘ ^seLífEeiecpiaceyto woerk: duty to wa ..

The duty to adopt every practicable precaution against the dangers incident to the use of electricity is too well settled by decisions of the courts to require an extended citation of authorities; but see, as particularly in point, Moran v. Corliss Steam-Engine Co., 21 R. I. 386 (43 Atl. 874, 45 L. R. A. 267); Voyer v. Dispatch Printing Co., 62 Minn. 393 (64 N. W. 1138); Economy Light & Power Co. v. Hiller, 203 Ill. 518 (68 N. E. 72); Delahunt v. United Telephone & Telegraph Co., 215 Pa. 241 (64 Atl. 515, 114 Am. St. Rep. 958). It is shown by the evidence that defendant’s superintendent had knowledge that the electric lighting appliances in the room where plaintiff was employed were defective, and that persons frequently received shocks while transferring the electric light bulb from one socket to the other, and it was therefore the duty of defendant at least to warn plaintiff. of the possible danger involved in the operation. The danger was one not obvious to an employee unacquainted with the defects. Under these circumstances the duty to warn was manifest. Vohs v. Shorthill, 130 Iowa, 538; Long v. Johnson County Telephone Co., 134 Iowa, 336; Newbury v. Getchel & Martin Lumber & Mfg. Co., 100 Iowa, 441.

4’ ’ It is also plain that the duty to provide a safe place to work, and that of giving warning as to dangers not obvious, involved the exercise of care on the part of defendant for plaintiff’s safety, not only with reference to defects in the appliances of which defendant had actual knowledge, but also with reference to such defects as he should have Imown in the exercise of reasonable care for his employee’s safety. The duty is affirmative. Rice v. King Philip Mills, 144 Mass. 229 (11 N. E. 101, 59 Am. Rep. 80); Denver, etc., R. Co. v. Smock, 23 Colo. 456 (48 Pac. 681). It is not material as bearing on the present inquiry that the electric lighting appliances were installed by a competent con tractor. They may have been sufficient when installed, but the duty to keep them in repair rested on defendant, and he was negligent if they were allowed to become out of repair and inefficient. Hoboken Land, etc., Co. v. United Elec. Co., 71 N. J. Law, 430 (58 Atl. 1082); National Fire Ins. Co. v. Denver, etc., Elec. Co., 16 Colo. App. 86 (63 Pac. 949). In Martinek v. Swift, 122 Iowa, 611, it appeared, not only that the connections were installed by the lighting company, but also that defendant was without fault in reference thereto. The cases cited for appellant relating to the duty to- take reasonable care for the safety of an employee after danger to him by reason of his own negligence has become apparent have no application to the present case. The negligence of which plaintiff complains is the original negligence of the defendant in the discharge of his primary duty, and not negligence in discharging a duty subsequently arising after danger to the employee by reason of his own negligent acts has become apparent.

5' contributory negligence. There was evidence for defendant that, soon after the accident, the transformer was found to have been recently burned out; and counsel for appellant insist that, under the instructions, the jury should have found plaintiffs injury to have been due to this cause, and not to the defective wiring, and should have returned a verdict for defendant, or that such a verdict should have been directed by the court. The instruction of the court on this question was that, if the injury was due to defects in the wiring of the building, the defendant would be liable, even though the negligence of some other person might have contributed with that of defendant to bring about or produce the injury. It appears that the transformer was in charge of the electric light company furnishing electricity for the lighting of defendant’s building; but it does not follow - that the defective condition or insufficiency of the transformer was the proximate cause of the injury in such sense as to exclude liability of defendant for his negligence. As already indicated, it was the duty of defendant introducing a dangerous agency into his building to take every precaution practicable against injury resulting therefrom to his employees, and his negligence in furnishing appliances not properly insulated was the • proximate cause of plaintiffs injury, even though if the transformer had worked properly and- remained in good condition these defective appliances would not seriously have endangered plaintiffs safety. Where the negligence of defendant is- such that without it injury would not probably have resulted, he is liable, although other causes contributed to the injury. Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700 (1 Sup. Ct. 493, 27 L. Ed. 266); Wagner v. Portland, 40 Or. 389 (60 Pac. 985, 67 Pac. 300); Fox v. Manchester, 183 N. Y. 141 (75 N. E. 1116, 2 L. R A. (N. S.) 474); Fishburn v. Burlington & N. W. R. Co., 127 Iowa, 483.

The complaint that the court did not define “proximate cause” is without force. The term is in such general use that any intelligent person must have understood what was meant. If, under the circumstances, further definition was deemed important, some instruction on the subject should have been asked.

6. same: instructions. III. Conceding that the defendant by his answer raised an issue as to assumption of risk, we find no error with reference to the submission of that question to the jury. In .one instruction the court told the jm,y that, to enable the plaintiff to recover, certain facts must be established, and that, if the jury failed to find a preponderance of the evidence in favor of the plaintiff on each of such propositions, the verdict must be for the defendant; but in another instruction the jury was specifically told that if plaintiff knew the place was unsafe, .or could have known of its unsafety by the exercise of reasonable caution and prudence, and without in forming the defendant of the fact, continued to work in the place notwithstanding such knowledge, then he assumed whatever risk there was by reason of the condition of the place, and could not recover. There was no inconsistency between these two instructions. One related to plaintiffs affirmative duty to establish defendant’s liability to plaintiff, the other to an affirmative defense, which, if established, would relieve the defendant of liability. Martin v. Des Moines Edison Light Co., 131 Iowa, 724. The question of assumption of risk was submitted under adequate instructions, and there was sufficient evidence to justify the finding that plaintiff did not know, and as a reasonably prudent man was not bound to know, of the danger involved in the defective appliances with which he was required to work. There was evidence that he was aware that a switch which had been originally introduced for the purpose of cutting off the current from the socket where the injury occurred was no longer in use; but, had there been proper insulation, this would have been immaterial. If he acted under the justifiable belief that the insulation was sufficient and the appliances otherwise safe he would not necessarily have been bound to switch off the current before removing the bulb from this socket.

7. Appeal: amended abstract: motion to strike. A motion to strike appellee’s amendment to the abstract because not filed in time is overruled. The amended abstract was filed two months before the time for submission, and no motion to strike was interposed until after appellee had prepared in part his argument based upon such amended abstract. There was also a certification of the record before any objection to the amended abstract was interposed. We think the motion was made too late, and that, in any event, no prejudice has resulted to appellant.

The judgment is affirmed.