Johnson v. J. W. Turner Improvement Co.

179 Iowa 547

• Court: Supreme Court of Iowa
• Decided: March 12, 1917
• Status: Published

Opinion

Evans, J.

proximate011' oí causal connection. The plaintiff was engaged as an employee of the defendant at the bottom of a manhole about 15 feet deep, wall-mg up the same. He Avas assisted by two helpers at the top of the ground, one of whom was engaged in letting down the bricks for the plaintiff's use, and the other in letting down the cement. For that purpose, each of them used a bucket, to which was attached a hook and rope. The manhole was lined with boards which extended from the bottom of the manhole upward 2 or 3 feet above the surface of the ground. Barney was the employee engaged in letting down the cement. The manner of doing the work was that he let down each bucket of cement by means of a rope, letting the rope pass through his hands as the bucket proceeded to the bottom. While so working, in one instance the weight of the bucket pulled the rope through his hands quite rapidly, whereby the plaintiff was struck upon the back and sustained injury thereby.

That there was negligence on the part of somebody may be assumed. The plaintiff, however, was confronted with the necessity of showing the negligence of the employer, as distinguished from the mere negligence of a fellow servant. With that in view, the plaintiff specified two grounds of negligence of the employer: (1) That the rope used by Barney was old and frayed, and that such condition was the cause of its slipping through Barney’s hands; (2) that the boards which lined the manhole extended upward too high above the surface of the ground, and thereby made the work of Barney more difficult and dangerous.

The lining of the manhole was intended as a protection against caving. The curbing or shoring above the surface had also its manifest use as a protection against the rolling of objects from the surface. The only eyewitnesses to the accident were Barney and Joe Van Nordstrand, a boy 10 years of age. Before the trial, Barney had left the neighborhood, and Avas not available as a witness. The boy witness testified for the plaintiff as follows:

“Am 10 years old. I Avas looking right down into the manhole. I was looking 0Arer the boards. The boards Avere about 2 feet above the ground; came a little above my waist. When I Avent up there, the man was just starting to lower the bucket of mortar doAvn. It Avas a tin bucket. It had a long rope fastened to the handle. I noticed him when he lifted it over the boards to loAver it down. I had been watching that before the accident occurred about 15 minutes; had been leaning over there all that time. The man in there had laid 4 or 5 courses of brick. The other man had lowered one bucket of mortar. The manhole Avas 4 or 5 feet across. He lifted it over the boards and started to lower it down and it slipped out of his hands. The bucket hit the man’s back. The bucket was about half way down Avhen it slipped out of his hands. Mr. Johnston Avas about 12 feet beloAV me. The rope didn’t break, nor did it come unhooked from the bucket. The rope slipped out of the man’s hands. The boards Avere ¿bout the same height all around; they came up just a little above my waist. The ropes were about 20-feet long. There Avere no knots in the rope — I noticed that. The rope that slipped-looked just like the other rope. I didn’t see anything peculiar about •that rope.” .

As bearing upon the first ground of negligence above stated, it is not claimed that the rope broke. It is claimed that, for a distance of 2 or 3 feet at the end of the rope next to the hook, it was old and frayed, and that this condition made it more difficult for Barney to hold it, and that it thereby slipped through his hands. This is a mere claim, with nothing taugible in its support. According to the testimony of the boy, the only eyeAvitness, the slipping began Avhen the bucket Avas halfAvay dOAvn. The frayed part of the rope, therefore, was not in the hands of Barney at that time, and it could jiot have been the cause of the slipping. We think it very clear, therefore, that it cannot be said upon the evidence in the record that the alleged frayed condition of the rope had . any causal relation to the accident.

Nor do we see any way of connecting the other alleged ground of negligence as a cause of the accident. The curbing or shoring Avas 2 or 3 feet high; whether it should be greater or less was a mere detail. It undoubtedly acted as a continued protection to the plaintiff at the bottom against the falling in of heavy material. That the height of the shoring rendered it necessary for Barney to lift the bucket of cement a corresponding height, goes Avithout saying. Concededly, increasing height would increase the lift, and in that sense Avould make the Avork of Barney more laborious. But such fact did not imperil the safety of the plaintiff. It is argAied, hoAvever, that the existence of this shoring as an obstruction interfered with Barney’s control of his load; that, if the boards had been cut off level with the top of the ground, Barney could then have stood OA'er the hole in such a way as to hold his load more strongly; in other AAmrds, that the presence of-the obstruction compelled Barney to hold his load somewhat at arm’s length. But this is a mere detail of method in doing work. Such a condition as now advocated by plaintiff would create its own imminent dangers, both for plaintiff and for Barney. Barney was not required to undertake a heavier load than he could lift and control over the curbing. The curbing itself furnished him a bracing support, and a chance to use friction to prevent the slipping of the rope. He did stop the slipping of the rope after once losing control thereof. The blow received by the plaintiff was greatly reduced in force thereby. We see no basis in the evidence for a finding that the height of this curbing sustained any causal relation to the accident. If a jury had reached the conclusion contended for by the plaintiff, it would have been purely arbitrary, and without support in the testimony.

We think, therefore, that the trial court properly directed a verdict. The accident was not the result of any negligence specified in the petition. Beyond that we have no occasion to look. The judgment of the tidal court is, ti ¡ere fore, — A ffirm ed.

Gaynor, C. J., Ladd and Salinger, JJ., concur.