Kerker ex rel. Kerker v. Bettendorf Metal Wheel Co.

118 N.W. 306, 140 Iowa 209
CourtSupreme Court of Iowa
DecidedNovember 20, 1908
StatusPublished
Cited by9 cases

This text of 118 N.W. 306 (Kerker ex rel. Kerker v. Bettendorf Metal Wheel Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kerker ex rel. Kerker v. Bettendorf Metal Wheel Co., 118 N.W. 306, 140 Iowa 209 (iowa 1908).

Opinion

Weaver, J.

— The defendant owns and operates a plant for the production of metal wheels used in various kinds of machinery. The business, or some portion of it, is carried on in a 'shop about three hundred and seventy feet long, different parts of which are devoted to different branches of the work required in turning’ out the finished product. About two years prior to the accident complained of Noy Kerker, then a boy of sixteen years, entered the defendant’s employ, and during most of that period worked at or with a device known as a “shoulder machine” near one end of the shop. During the same period at a point about one hundred and twenty-five feet from the boy’s station, and near the center of the shop, was what the witnesses call a “truing post,” at or near which the final work of finishing and testing the wheels is performed. In performing' this work, the hammering of iron or steel was a frequent occurrence. Caused by the- force of the blows falling on the metal of the wheels, or by the hammer of one workman striking the face of a sledge held against the metal by another workman, small pieces or flakes known as “spawls” were likely to be broken from -the face of the hammer, and fly to a considerable distance with velocity sufficient to injure a person happening in the line of its flight. The plaintiff had never performed this labor, nor had he worked in the immediate vicinity of the truing post, but he made daily trips from his own station to the oil room, at the further extremity of the building, and in so doing passed within a few feet of the post. On the day in question he started for the «oil room, and, while passing the post, a spa'wl from the hammer of a workman struck him in the eye, causing a severe and painful injury for which he seeks to recover damages.

This claim is based upon the theory that defendant was negligent in failing to provide plaintiff a safe place [212]*212to work, and in the nse of defective hammers, and more especially in failing to warn and instruct the plaintiff concerning the danger of such injuries and of the means and methods of avoiding it. That such danger did, in fact, exist, the defendant concedes, and pleads in answer to plaintiff’s petition that “in the use of all hammers there is a possibility of splinters or spawls flying from said hammers, and in striking steel with a standard hammer it is always possible that splinters or spawls will be thrown with great force either from the hammer or from the metal being struck, and that' this flying of chips is inherent in the use of hammers and ordinarily incident to the business of manufacturing from iron and steel, and is one of the dangers necessarily incident to the defendant’s business.” There is evidence tending to show that the labor performed at plaintiff’s station in the shop involved no hammering of metal, and he swears that he had no knowledge of the danger from flying spawls where such hammering is being done. He says he was never instructed or warned concerning such danger, and in this he is not contradicted. The motion to direct a verdict is based on the following grounds-: (1) Because it appears without dispute that the defendant furnished and used in its plant only standard hammers, of the kind and quality generally used in similar shops, and no chips or splinters had ever flown from such hammers in the history of the plant in a way to be dangerous to the knowledge of the defendant, and that there was no recognized danger in the use of such hammers as they were employed in said plant. (2) Because it affirmatively appears that in the use of hammers upon steel there is always a possibility of flying spawls, and that such occurrences are unavoidable and naturally incident to the business, and that plaintiff assumed the risk thereof in entering the employment of the defendant. (3) Because of the failure of plaintiff to prove the negligence alleged in his petition. (4) Because there is no evidence that the hammer from [213]*213the use of which plaintiff was injured was in any way defective or improper for the use to which it was put. (5) Because the evidence fails to show any negligence on part of the defendant in any respect whatever. This motion was sustained generally without any discussion of the several points therein made. The argument in this court is confined principally to the question whether, under the circumstances as disclosed under the evidence, the defendant was negligent in failing to warn or instruct the plaintiff as to the danger to which he was, or might be, exposed from flying spawls while passing near the truing post in the course of his employment. We shall therefore turn our attention to that proposition, and to the evidence bearing thereon.

servant: duty to warn: care on part of servant. Í. That due care on part of the master may require him under some circumstances to instruct or warn his servant concerning the dangers incident to his employment is well established. The duty is most imperative where the danger is or a latent or obscure character, and where the master knows the servant to be inexperienced or of immature age. Wilder v. Cereal Co., 130 Iowa, 263; 20 Am. & Eng. Encyc. Law (2d Ed.), 91. To use the language of the Massachusetts court: “Where an employer knows the danger to which his servant will be exposed in the performance of any labor to which he assigns him and does not give him sufficient and reasonable notice thereof, its danger not being obvious, and the servant without negligence on his part through inexperience or through reliance on the directions given fails to perceive or understand the risk and is injured, the employer is responsible. The dangers of a particular position or mode of doing work are often apparent to a person of capacity or knowledge of the subject, while others from youth, inexperience, or want of capacity may fail to appreciate them, and the servant even with his own consent is not to be exposed to [214]*214such 'dangers unless with instructions and cautions sufficient to enable him to comprehend them and to do his work safely with proper care on his own part.” Leary v. Railroad Co., 139 Mass. 580 (2 N. E. 115, 52 Am. Rep. 733). See, also, Ross v. Walker, 139 Pa. 48 (21 Atl. 157, 159, 23 Am. St. Rep. 160); Hughes v. Railway, 79 Wis. 264 (48 N. W. 259); Norfolk Beet Sugar Co. v. Hight, 56 Neb. 162 (76 N. W. 566). The Wisconsin court has stated the rule in the following language: “The master owes a duty toward an employee who is directed to perform a hazardous or dangerous work or to perfoim his work in a dangerous place when the employee, from want of age, experience or general capacity, does not comprehend the dangers, to point out to him the dangers incident to the employment, and thus enable him to comprehend and so avoid them; and neglect to discharge such duty is gross negligence on the part of the employer.” Jones v. Florence Mining Co., 66 Wis. 268 (28 N. W. 207, 57 Am. Rep. 269). It should be said, however, in this connection, that ■the rule is not to be so interpreted as to excuse the employee, whether a minor or adult, from the exercise of reasonable care for his own safty. What is reasonable care will depend in each instance upon the age, capacity, and experience of the employe, and upon the further fact whether the danger complained of is obvious or otherwise, and the character of the work and the circumstances under which it is to be performed. 1 Labatt on Master & Servant, section 291.

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Bluebook (online)
118 N.W. 306, 140 Iowa 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerker-ex-rel-kerker-v-bettendorf-metal-wheel-co-iowa-1908.