Mericle v. Acme Cement Plaster Co.

Ladd, J. The defendant is engaged in the manufacture and sale of gypsum products, with factory and mine two or three miles south of Pt. Dodge. Pollie J. Meriele had been employed on the night shift as operator of a wood fiber saw two nights, and on the third was assigned -to work as weigher, The night shift went on duty at seven o’clock p. m., and upon the arrival of Mericle he was directed by the general foreman, as is alleged, to get a pail of water. The well, out of which water ivas pumped into a tank, was in the mine. Access thereto was by the double shaft, near the bottom of which was the tank. As he put his knee on the cage in the west shaft which had stopped about one and one-half feet above the ground, and had taken hold with one hand, it jerked up, bringing him against a crossbeam about five feet above, and he fell to the bottom of the shaft, receiving injuries resulting in his death. Though many grounds of negligence were charged, but one was submitted to the -jury, and that “that defendant was negligent in failing to instruct and warn plaintiff’s intestate of the danger involved in the use of the cage or elevator described in plaintiff’s petition, and that plaintiff’s intestate, while in the discharge of services for the master, was injured on account of a danger of which he should have been warned.” — 694 — I. Appellant first contends that Mericle was merely permitted, not directed, to get the water, and did so, not in obedience to the order of the foreman, but at the request of the engineer. Nimms, who was general night foreman of that portion of the plant above the surface, testified that there was some delay because the steam was not 'up, and that about 1:15 o’clock p. m. (Sunday, August 25, 1909) Mericle asked; Where the drinking water was, and I told him it was in the pail beside the mill, and if there wasn’t any there to go and get some. Q. Did you say where he could get some if there was none there? A. No, sir; I did not Q. Where was the place to get drinking water for employees ? A. In the mine. That was the only place we could get drinking water at that time. (The witness then explained that the only way to reach the mine for water was by way of the shaft, and later on cross-examination said) : Bollie ashed me where the water was. Q. When did he ask you 'that? A. That was just before I went to the engine room, about quarter past seven. I showed him where the water pail was. I remember that distinctly; there is no question in my mind about that. I didn’t go to the water bucket with him. Q. How far were you away from the water bucket when he asked you where the water was? A. I was about ten or fifteen feet. Q. You didn’t know whether there was water in the bucket or not? A. No, sir. Q. You knew nothing about his going down into the mine for water at that time? A. No, sir. Q. And never told him to get water out of the mine, did y(ou? A. No, sir. Q. Never ordered him into the mine to get water, did you? A. No, sir. 'On redirect examination he was asked, “What was it you said to Rollie after you said to him, if there was no water in the pail?” and answered, “I said if there wasn’t any there he could get some.” Recalled for further cross-examination, the witness testified: “I didn’t know he was going down into the mine after water. Q. You never thought he was going down in the mine after water? A. — 695 — I never thought anything about it. . . . Q. It wasn’t your intention that he should go down into the mine that night? A. I didn’t intend for him to go there, and that is why I didn’t tell him anything about the cage. . . . Q. Tou didn’t think that was an order for him to go into the mine, did you? A. Well, I didn’t stop to think ■■about it.” ^ Of course, the jury might have concluded from this testimony that the foreman merely gave decedent permission to obtain the water, or from the evidence of the ■engineer • and Pierce, who testified that the former requested him to get a pail of water, that he was acting in pursuance of such request; but.neither of these conclusions was necessarily to be inferred from the evidence recited. According to Nimms, a pail was kept in the engine room “all summer. Water was kept in it. It was used for the purpose of drinking water for the men.” Chase^ .superintendent of the mine, testified that no particular ■employee was designated to furnish the water to the employees. “Q. They would get the water from the well in the mine? A. In the bottom out of the tank or out of the casing, and one of the men would go down, using the ■elevator or cage, and bring up a pail of water and put it where the other employees could get it.” servant^ employment: evidence. Prom this evidence the jury might well have concluded that, as part of the plan or system of carrying on the work, drinking water was kept at a place easily accessible to the men, and, as needed, some one of the employees attended to getting water, as described. Probably this was ° t usually done voluntarily, "but, if so, this did not necessarily negative getting it, being a duty which the foreman might exact from any one not assigned solely to the performance of some particular task. Though decedent had passed two nights at the wood fiber saw, he was to weigh gypsum rock at the tipple or top of the shaft — 696 — some twenty or twenty-four feet above tbe surface as soon as tbe steam was up enough to carry gypsum rock from the mine below, and quite naturally the foreman might have directed him, in the interim, to replenish the supply of water if exhausted. In doing so, he may not have thought out the route to be taken; but he knew the only place water could be obtained was in the mine, and that the only access thereto was by the elevator, and therefore his order, if such it was, necessarily contemplated that decedent should get the water from the mine. In addition thereto, the engineer may have and doubtless did tell or request him to get the water; but the engineer was not in authority, and the jury might well have inferred that decedent was acting in obedience to the foreman, acting as vice principal, rather than upon the request of a fellow servant. We are of the opinion that the evidence was sufficient to sustain the answer to the special interrogatory that Nimms directed decedent to get water from the mine. 2. Same: negligence of master: evidence. II. The evidence was such as to indicate that the use of the elevator when- water was being forced from the engine cylinders was dangerous. After the conversation with Nimms, decedent entered the engine room. The engineer, Henry, testified that he knew he “was going to try to go down into the mine to get a pail of water,” and “told him I would let him down. ... I asked him to get a bucket of water, and a pail was sitting there that I had cleaned out already, and I went to the shanty and got him a cap and lamp. He come there with me, and I says: 'Do you know where the well is V He says, 'No/ and I laid it out to him oVer the ground, gave him the directions, and I said, 'I will go and get the water out of the mine cylinders and give you the east cage and land it for you/ and that is all I know. Then I left and went to the engine room. When I went there, I commenced to work the steam and — 697 — try to drain my cylinders. Then I pulled the cage up and got pretty near to the top, when Pierce hollered to me.'’ This was done by opening the pet cocks and letting the steam in the cylinders, and the effect is thus described by the engineer: ■When I turn the steam on with the throttle of the engine, the cages work up and down, and that works the water out of the engine. There is.a drum there as a part of the engine. This drum is four and one-half or five ■feet in circumference — in diameter, and the cable is wrapped around .the drum, and it is the movement of the drum that gives out or takes up the cable. When one cage is being. taken up, the other cage is being let down in the shaft, so when I was raising the west cage the east cage was going down. It was not my purpose to stop the west-cage at the landing. It was my purpose to stop the east cage at the landing when I brought it up again if I had the water all out. The shafts stand side by side. They are divided by a wall about eight inches in thickness, and they face straight south to the opening which is south. . . . When I went in there to turn on the steam, I applied the steam easily. I didn’t put it on and cut it off again. I put it on and kept it on. There were marks on the wall to tell where the cage was. In operating the engine I looked at these marks, and from them I knew when the cage was in the shaft, and knew when it was out of there, but I knew just about where it was. There is a separate entrance to each cage. ... I did not expect Meriele to try to get into the west cage. I told him I would give him the east cage, and I told him I would work the water out of the cylinder before I gave him the east cage. I -don’t know as I said out of the cylinders. I said out of the engine. . . . Just as the water leaves, it would jerk. She would jerk when she took a revolution. ... At the time Meriele was hurt, the west cage was making its first trip to the top, and the oast cage was making its first trip down. The west cage was used to raise gypsum rock, though occasionally for passengers, and the east one for passengers. Other witnesses corroborated the engineer in saying — 698 — lie bad pursued tbe proper method in eliminating water from tbe cylinders. One Pierce, who bad arrived from Ft. Dodge, was tbe only eye witness of tbe accident. He confirmed tbe engineer’s testimony as to tbe conversation prior to tbe turning on of steam, and added that Henry then cleaned tbe bucket and gave it to Mericle; And told bim be would go in and stop tbe cage — be would run tbe engine and stop tbe cage at tbe ground, or start tbe engine. I don’t know which. . . . After Henry went to tbe engine, there was a movement of tbe cage. ... I really don’t know whether it came up or went down. I 'believe it came up and stopped a foot or a foot and a half above tbe landing on tbe west side. Q. What did Eollie do then? A. Put bis foot on tbe cage and put bis knee on tbe platform and took bold of it with one band, and then tbe cage went up. I don’t know as I understand tbe question. You -mean was tbe cage standing still at tbe time be put tbe pail on and he went to get on? It was standing still, and be got half way on, and tbe cage started and went away with him and went up. When tbe cage started to go up, be bit tbe crossbeam about five feet above him between bim and tbe cage. After that tbe cage ascended fuüther, and be fell to tbe bottom of tbe shaft. . . . The time be landed tbe cage bad stopped. They were just there together. They both got there just about tbe same time. He placed tbe pail on ahead of himself, and then be started to get on. He only got tbe knee of one leg on tbe cage. The other leg was banging down as be went up. . . . He was braced with bis knee on the cage and bolding tbe cage rod. That was tbe condition of bis body as it disappeared. Tbe cage hesitated between there between ten and twenty seconds, I suppose. From this evidence the jury must have found that for any one to haAre undertaken to get into either cage after steam had condensed in tbe cylinders and while tbe water was being eliminated was perilous, and that a person without experience ought not to be directed to make use of tbe elevator at-or about that time without warning or instruc — 699 — tion of tbe necessity of first ascertaining that this had been accomplished. 3. Same: scope of employment: negligence of III. Tbe defendant contends that tbe evidence was not such as to carry tbe issue of failure to warn of tbe peril in tbe use of tbe elevator. The authorities cited, bolding there to be no duty to warn save . . ,. £ , concerning perils within tbe scope 01 employ- . . . , ment, require no attention, .for the evidence discloses that decedent bad not been engaged for any particular task, but inferably to perform what might be required of him, and, as be might have been and was found to have been acting under tbe direction of tbe vice principal, this in effect determined that be was within tbe scope of what be bad undertaken to do. 4. Same: duty to warn. Before tbe master is required to warn a servant, especially an adult, however, it must appear that tbe servant, because of bis inexperience or otherwise, is without knowledge of the perils about to- beset him, and also that tbe master is aware of such want of information, or has reasonable ground so to believe. As said in McCarthy v. Mulgrew, 107 Iowa, 76, “the duty of tbe master to instruct and warn a servant only arises as to dangers which tbe master knows or has reason to believe tbe servant is ignorant of. It does not arise as to dangers known to tbe servant, or that are so open and obvious as that by the exercise of ordinary care be would have known of.” In Harney v. Ry., 139 Iowa, 359, it was said that: “Before an employer can be held liable for a failure to warn, there must be something to suggest to him that warning is necessary. Unless this necessity was, or ought to have been, known to him, bo is considered to be justified in acting upon tbe assumption that tbe servant understood tbe dangers to which be was exposed, and would take appropriate precautions to safeguard himself.” See also, Newbury v. Mfg. Co., 100 — 700 — Iowa, 441; Yeager v. Railway, 93 Iowa, 1; Fulwider v. Trenton Gas Co., 216 Mo. 582 (116 S. W. 508). These and numerous other decisions are to the effect that, before an employer can be said to have been derelict-in not warning an employee of the dangers of his employment, it must affirmatively appear that the employee was ignorant, and that the master knew or ought to have known of that. Did the evidence adduced warrant such a finding? The decedent ivas oven twenty-one years of age, and, as his father testified, was well educated “for a young fellow,” had been in school in Pleasánt Valley township until he was sixteen years old, and that “part of the time he worked at the jdaster board and the gypsum mills; that is, for some two or three years before he was hurt” and “up to the time he was killed, the only work he had done was what work he had done on the farm and what Avork he had done in the gypsum mills. He worked, I think, at the gypsum mill or mine, and then went down and worked in a blacksmith shop at Brushy the best part of the Avinter, and then came back and worked in the gypsum mill. I think he worked at the Butler & Ehodes mine.” Nimms testified that Mericle had been working around the gypsum mills from about the time he Avas seventeen years old at the Mineral City Mill, the Cordiff Company, and the Sackett Plaster Board. The evidence disclosed that the method adopted by Henry in eliminating water from the cylinder Avas that usually followed in other gypsum mills with like influences on the elevator. There Avas no proof as to who acting for defendant employed decedent; nor was there any evidence, save that- of Nimms, as to whether he had been warned concerning the danger involved in the use of the elevator. Nimms testified that he never told Mericle, after he began work, of the manner the elevator Avorked and jumped. Had he informed him before ? Did the agent or officer of defendant — 701 — who engaged the services of decedent advise him thereof? The record is silent on the subject. Nor is there any evidence in the record justifying the conclusion that decedent was not aware of the very peril mentioned. He had been employed in gypsum mills before, and also in a mine, sc that the inference is that he did know, rather than that he did not. Moreover, there was nothing to put appellant on inquiry with reference thereto. In the absence of all evidence tending to prove decedent unaware of the. peril in the use of the elevator and that defendant ought to have known that he was so unaware, this issue ought not to have been submitted to the jury. negligence: evidence. IV. Again, it is argued that the evidence was conclusive as to decedent being guilty of contributing to his injury by his own negligence. True, Henry testified to having told him that he would go and get the water out of the engine and give him . the east cage and land it for him. Pierce relates that Henry said “he would go in and stop the cage. He would run the engine and stop the cage at the ground, or start the engine, I don’t know which.” Pierce said he could not say that he had repeated everything said, but he claimed to be giving his best recollection, and, though he did' not expressly deny the account given by Henry, what he said had that effect. If Pierce understood the engineer in that way, decedent might have done likewise, and if he did, when the cage stopped in front as an ordinarily prudent person, have supposed this was to enable him to get in, even though the cage was a foot or more above the surface. There was no error in submitting this issue to the jury. V. The seventh instruction is criticised for that it included the inquiry as to whether decedent was after a drink of water for himself. As the water pail from which to drink was kept in the engine room, and there was no proof that the mine was resorted to for this pur — 702 — pose, that portion of the instruction might as well have been eliminated. The criticism of. questions permitted over objection as leading is not well founded. Because of the failure to prove any negligence ,on the part of defendant, the judgment is — Reversed.