Brooks v. W. T. Joyce Co.

McClaiN, J. The defendant company is carrying on the business of selling lumber at Carroll, Iowa; and plain [267] tiff, at tbe time of receiving tbe injuries complained of, was a workman employed about its yards. Under tbe instruction of one Brown, wbo bad charge of tbe work in tbe yard under tbe direction of tbe defendant’s superintendent, plaintiff was engaged in loading a wagon witb bundles of maple flooring being taken from a pile of sucb lumber, and while thus engaged be,was injured by bundles from tbe pile falling against him and breaking bis leg. Tbe negligence charged is that tbe bundles of flooring were piled up without cross-sticks, which would have rendered tbe pile firm and secure, and which was the usual way of piling sucb lumber. It is claimed for tbe defendant that tbe defective piling of tbe lumber was tbe result of tbe negligence of a co-employé; that tbe danger was open and apparent to tbe plaintiff, and was assumed by him; and that plaintiff was guilty of contributory negligence. 1. Master and servant: safe place to work. Tbe argument for appellant is largely directed to tbe proposition that tbe negligent piling of tbe lumber was not merely tbe act of a co-employé, but was chargeable to the defendant as a failure to provide tbe plaintiff witb a safe place to work. We are inclined to _ . _ _ .. think that this contention is sound, for, if defendant allowed its piles of lumber to be so made'and kept as •to constitute a menace to tbe safety of employés, it could hardly be permitted to say that tbe piling was originally done by its employés, for whose negligence it would not be responsible. 3. Practice: directed verdict. But tbe motion to direct a verdict was also based on ■the grounds of assumption of risk by plaintiff, and contributory negligence on bis part; and, as tbe motion was sus-tabled generally, if either of these two grounds wag g-Q-jg^ent the judgment of the lower court should be affirmed, although another ground' of the motion which may have been relied upon in argument in tbe lower ■court was not sufficient. We must consider, then, whether the evidence shows beyond controversy that plaintiff had [268] assumed tbe risk of tbe defective piling of tbe lumber, or showed freedom from contributory negligence in attempting to take lumber from tbe pile, as be did, at tbe time of tbe injury. Plaintiff bad been in the. defendant’s employ about its yards for many years, and was familiar witb tbe usual 2. Assumption of risk: contributory negligence. method of piling lumber. He testifies that it was unsafe and unusual to pile up these bundles Q£ ]iar(Jw00(J fl00rjng -without Cl’OSS-Sticks to hold them together; that, if cross-sticks had been used, that fact would have been readily apparent to him; that be went past this pile of flooring many times a day, and had often been engaged in taking lumber from it to load upon wagons; and that be could have seen when attempting to take bundles from it at tbe time of tbe accident whether cross-sticks had been used in piling it, or not. Therefore, as be knew how tbe lumber should have been piled in order to avoid injury likely to result from its falling, and must necessarily have known, had he given any attention whatever to tbe matter, that the method of piling which had been adopted was dangerous, he must be held, as a matter of law, to have assumed the risk.' This is not a case where, while the condition- is known to tbe employe, tbe danger resulting therefrom is not appreciated by him. Tie knew as much about how this lumber should have been piled as anybody about the yards, and bad exactly tbe same means of knowing that it was not properly piled, and he knew as well as anyone could know the danger involved in the conditions as they existed. It seems to us, therefore, that this is the ordinary case of assumption of risk, and that, as the facts are established without controversy from the plaintiff’s own evidence, and there is no conflict as to any of the material facts, the veixlict was properly directed. Coles v. Union Terminal Co., 124 Iowa, 48; Branco v. Illinois Cent. R. Co., 119 Iowa, 211; Olson v. Hanford Produce Co., 118 Iowa, 55; Way v. Illinois Cent. R. Co., 40 Iowa, 341; Money v. Lower Vein C. Co., 55 Iowa, [269] 671; Newbury v. Getchel & Martin Lumber & Mfg. Co., 100 Iowa, 441. Tbis is a case where the evidence showing assumption of risk also negatives the exercise of reasonable care on the part of the employé with the knowledge or means of knowledge which would lead a reasonably prudent person to avoid the danger involved in the attempt to take bundles of lumber from the pile which had been improperly put up. The plaintiff cannot complain of the injuries received, resulting from the defective piling. The case is not one in which the minds of reasonable persons might differ as to whether the conceded facts show negligence, and in which the question of negligence, under the conceded facts, should have been submitted to the jury; but, on tire other hand, it is one in which no other conclusion than that of negligence can be drawn from the conduct of plaintiff, and in which, therefore, a verdict for the plaintiff, had the case been submitted to the jury, would properly have been set aside as without support in the evidence. McLaury v. McGregor, 54 Iowa, 717; Sikes v. Sheldon, 58 Iowa, 744; Beckman v. Consolidation Coal Co., 90 Iowa, 252. The judgment of the trial court is therefore affirmed.