Bolsem v. Iowa Central Railway Co.

117 N.W. 1098, 140 Iowa 73

Opinion

McClain, J.

— For about three years prior to the date of the accident resulting in the injury complained of, plaintiff had been in the employ of defendant as a bridge carpenter, and in that employment had had experience in the work of the bridge gang, which included, not only bridge work proper, but repairing and keeping in order stockyards, water tanks, roundhouses, and water cranes. On the 13th of February, 1905, the water crane at defendant’s station at Oskaloosa was found to be out of order, and one Reed, the fdreman of the bridge gang, directed three of the gang, plaintiff, Hunt, and Pilgrim, who had been engaged in cleaning out water cars in another part of the yards, to put it in repair. These men, with the foreman, investigated the difficulty with the crane, and found that the standpipe, connecting about five feet underground'with the water main, and arranged so as to re-, volve as required on .ball bearings inside of a collar which extended above the' surface of the ground and was easily accessible, lrad been forced upward to a slight extent by the pressure of the water, so that the balls on which it should rest had fallen from their spindles on the inside of the collar to the bottom of the pit, and the crane could not be turned. This pit was about five feet long and four feet wide, covered with planking. The standpipe was about eight inches in diameter, of cast iron, from a half inch to an inch in thickness, and ten or twelve feet in height above the ground, and weighed about seven hundred pounds.

Hnder the direction of the foreman Hunt opened the pit, shut off the water which had been running, and, after the water in the pit had drained away, secured from the bottom the balls which had fallen from their spindles or sprockets on the inside of the collar. He also tried lifting np the standpipe by means of his crowbar, placing the end under a lug standing out an inch and a quarter from the surface of the pipe and near its lower end, and running around it for a distance of four or five inches. He found that by prying with his crowbar he could raise the pipe, and so advised the foreman. About this time plaintiff had taken his tools, consisting of crowbar, pick, and shovel, to the little toolhouse near by, where they were usually kept, and was about to quit work for the day, it being then six o’clock. The foreman told him that fixing the crane so that engines could be watered was a necessary job, and must be attended to at once, and directed him to get tools and fix it, hut without giving him directions as to what tools he should get, or what method he should pursue in doing the work. It is doubtful whether the foreman knew about the balls being off their spindles, for he said, either to Hunt or plaintiff, that he did not know what was the matter with the crane. At any rate, without giving further directions, he left plaintiff, ivho is described as assistant foreman, to proceed with the help of Hunt and, without further assistance, to put the crane in working order. Plaintiff went to the storehouse near the roundhouse, which was not far away, and asked the keeper for jack screws, which he was amable to get, although it appears in the evidence he might have got jack screws if he had gone to the roundhouse. The conflict in the evidence as to what efforts plaintiff made to get jack screws, and why he did not get them, seems to be immaterial, in view of the fact that he testified that he did not know what use he could have made of jack screws if he had secured them.

Returning to the water .crane, plaintiff was told by Hunt that the standpipe could be raised by crowbar, and Hunt, working in the pit, proceeded to raise the pipe some, little distance by prying under the lug, but plaintiff found that the pipe was not thus sufficiently raised to enable him to adjust the balls in the' collar. Hunt said that if he had a fulcrum ho could raise it higher. Thereupon plaintiff went to the little toolliouse and secured- a track chisel about eight inches long, and an inch square, and handed it to Hunt, who said it was just what he wanted, and placing this track chisel under his crowbar, he raised the standpipe higher. When plaintiff had gone to the storehouse he had secured a torch and some waste and oil, and by lighting these the pit and the place above ground where plaintiff was working were sufficiently illuminated so .that plaintiff could see what Hunt was doing in the pit, and could also see what was necessary to do in replacing the balls on their sprockets. By means of the track chisel used as a fulcrum for his crowbai*, the point of which was put under the lug, Hunt raised the standpipe two or three inches, so that plaintiff could put his hand in between the collar and the standpipe — that is, the projecting rim of the standpipe which was designed to rest upon the balls wjien in place inside the collar- — and adjust the balls on their sprockets. He had adjusted one of them, and was putting another in place, when the crowbar slipped from under the lug, letting the standpipe fall, crushing plaintiff’s hand between the projecting portion of the standpipe and the collar. Readjusting his crowbar, Hunt was able to raise the standpipe again so as to release plaintiff’s hand, but it had been so crushed that amputation of the middle finger was necessary, and the other fingers are stiff. There is no question as to the hand being permanently disabled.

The negligence of the defendant through its vice-principal, the foreman, relied upon as a basis for recovery by plaintiff, is alleged to have consisted in failing to provide a sufficient number of men and suitable tools and appliances for the work which ifiaintiff was directed to do, and in failing to warn and instruct plaintiff in relation to the dangers involved in such work. The grounds on which a directed verdict was asked for defendant by its motion,, which was sustained generally, were that no negligence of defendant was shown, that from the evidence it appeared that- plaintiff had assumed the risk of doing that which he was attempting to do when injured, and that he failed to show freedom from such negligence contributing to the injury. While plaintiff testified that he was inexperienced and without knowledge as to the construction and operation of water cranes and the method of repairing them, it does appear that he was familiar with the work of bridge building, involving the handling of heavy timbers, and that he was familiar with the use of tools generally employed in railroad work, such as crowbars, picks, and shovels. He also Ayas acquainted with the construction of this Avater crane, for, a month before the accident, he had assisted in repairing- it by putting in some neAV parts. There Avas nothing complicated about the mechanism of the Avater crane, and Aidien plaintiff proceeded to put his hand in betAveen the projecting rim of the standpipe and the surrounding collar, for the purpose of adjusting the balls, he knew perfectly Avell what he was doing, and could not have been oblivious to the injury AA'hich would result to him if the standpipe, which, as ho kneAV, Hunt was holding up by prying with his crowbar under the lug, should fall by reason of the slipping of the crowbar, or otherwise. The operation in which he Avas engaged involved two elements, the raising of the standpipe, and the continuous support thereof while plaintiff Avas adjusting the balls to their places. Although plaintiff may not have been familiar with the specific operation of raising and holding up a standpipe, he must have been familiar, in his work as bridge builder, with the raising and holding up of heavy timbers or iron beams used in the construction of bridges, so that persons could Avork about and under them with safety. There was noth ing intricate nor peculiarly dangerous about the raising of this standpipe. Hunt did raise it by means of a crowbar and a track chisel used as a fulcrum. It could have been safely held in place' by putting some wooden blocks or other supports under the lug after it had been pried up, or by putting blocks between the projecting rim of the standpipe and the collar, so that the pipe could not fall back and crush plaintifPs hand. The precautions to be taken could be understood without any peculiar knowledge of the mechanism of the water crane, and were such as would.suggest themselves to a person familiar with the kind of work in which plaintiff had been engaged. Plaintiff must have known as well as anyone the danger that the crowbar employed by Hunt might in his manipulations slip from the lug under which the point was placed. If the accident resulted from any negligence of Hunt (although nothing of. the kind is suggested in the evidence), such negligence was that of a co-employe, affording plaintiff no right of recovery. If it resulted from the failure to take proper precautions in supporting the standpipe after it had been raised so that plaintiff could put his fingers inside the collar, the necessity of these precautions and their nature were as apparent to plaintiff as they could have been to anybody.

We cannot see that there was any necessity for specific instruction with reference to the dangers involved, nor can we see how there is any escape from the conclusion that plaintiff assumed the risk of the method in which he and Hunt, under his direction, were proceeding to do the work. No extended discussion of the authorities relating to the duty to instruct and the assumption of risk seems to be necessary. In Anderson v. Illinois Central R. Co., 109 Iowa, 524, especially relied on for appellant, the negligence alleged was in the failing to furnish cant hooks with which to handle heavy round piles, for the purpose of rolling them.or shifting them from one, side to the other of a car on which they were loaded, and it was held that the employe not familiar with the handling of such piling did not assume the risk involved in moving them by means of an ordinary crowbar. But in the' case before us the crowbar in the hands of Hunt was found sufficient to raise the standpipe, and it is not shown that there was any peculiar apparatus generally in use for supporting a standpipe in such position. One witness testified that in subsequently repairing this same standpipe he placed a piece of cedar tie on each side of the pipe, and bolted these two together so that they held the pipe firmly and then by means of jack screws raised the pipe up and supported it while the balls were being replaced. He does not testify that this was the only method in which the work could be done, but only that it was a proper method. But it occurs to us that after all the thing to be accomplished was simply the secure support of the pipe after it was raised, for Hunt did, as a-matter of fact, .raise it with a crowbar. The cases cited by appellant are those in which there was some peculiar danger in the employment not reasonably apparent to an ordinary employe, or in which the employe was inexperienced as to the work which he was called upon to do. Tn this case the danger was obvious, and while plaintiff was not experienced in working about water cranes, he had had ample experience in work of the same character as that involved in the task he was attempting to perform.

The lower court did not err in directing a verdict for the defendant, and the judgment is affirmed.