Kancevich v. Cudahy Packing Co. , 184 Iowa 799 ( 1918 )

Salinger, J.

1. Negligence: guards which prevent use of place. I. There is much testimony, as distinguished from evidence, which has no bearing upon any issue made. In the last analysis, the plaintiff was injured while handling ice buckets, by standing too close to the edge of an elevated platform, with his back towards suck edge, and falling from the platform to the ground. The ice supply for the employer of this plaintiff was taken away in cars which, while being loaded, were placed along the edge of this platform. While thus placed, the top of the cars was in such position as virtually to form a widening of the platform, or a guard rail for it. In other words, the plaintiff could not have fallen as he did, had such cars been present at the time when he fell. It is one charge of negligence that plaintiff was not furnished a safe place to work, and that there was a wanton disregard of his safety, because the master failed to provide a guard or railing along said edge of the platform, — therefore, said platform was improperly constructed; and that, without such guard or railing, there was nothing to protect plaintiff from slipping off the side of the platform, and falling to the ground below. The evidence shows that taking the ice away in these cars, as was done, was a proper method, and the construction of a permanent guard or railing at this point would practically have made it impossible to use the cars for taking away the ice; and that this method of so taking it away was a method employed to plaintiff’s full knowledge. Moreover, the mere putting up of a board that was at hand, which plaintiff knew how to put up, and had seen put up in the past, even if he had not himself done so, would have made as effective a guard as was needed for his safety. His failure to use this means of self-protection will alone dispose of the complaint of the absence of a permanent guard or rail. See Holzer v. McManus & Tucker, 179 Iowa 1206.

1a

2. Negligence: unsupported allegation. Another charge is, it was negligence to order plaintiff to go on this platform and work at his usual work at a time when defendant knew all cars had been moved away from the platform. It is possible this does more than plaintiff intended. While it charges a negligence, it indicates most clearly that he was not relying upon any rail or guard on the edge of the platform, but treated the presence of the cars as such guard or rail. Be that as it may, there is no evidence whatever that anyone ordered plaintiff to go upon the platform and proceed to work, at a time when defendant knew that all the cars had been moved away from the platform. See Rook v. Davenport, R. I. & N. W. R. Co., 182 Iowa 227.

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3. Master and servant: necessary removal of guard. The next charge is that defendant was negligent because it moved the cars away from the platform a.t a time when plaintiff was required to «work thereon, because his work required that he stand within a few 1 ^nc^es üie side of the platform, with his back turned thereto, at times when, as defendant knew, cars standing at the platform were likely to be moved without the knowledge of the plaintiff. We can find no reason for submitting this charge to the jury. The cars could not be well moved while plaintiff was at his work, without his knowing that fact. His consent to work at all was an express agreement that the ice he handled would be taken away in the cars that were placed on the side of this platform. It was useless to place the cars there, if they were not to be taken away. The real complaint at this point seems to be that the cars were moved without giving plaintiff notice or warning of such removal. There is no duty to give notice of self-evident things; to advise another of what he must know, if he use his senses and ordinary reasoning power. Without any notice or warning, this plaintiff must have knoivn well that the cars would be moved away, from time to time. Indeed, it may be said he could scarcely fail to know that a car present while he was at work was being moved away,- — and both his sight and hearing were good. Of course, no one had the duty of advising him that, if he stood too close to the edge of the platform, with his back towards it, and kept at work, and cars were moved away before others came to take their place, there existed an unprotected edge, from which the slightest unbalancing or misstep would throw him. See Haskell v. Kurtz, 181 Iowa 30. And he was not injured because a car was taken away without warning. None was moved away. None was there, and he knew it.

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4. Master and servant: insufficient lights. The only other charge is that the platform was insufficiently lighted, and to such an extent that plaintiff was unable to see there was no car along the edge of the platform. It is true there is testimony that, at the time in question, it was “darkbut, in the light of all the testimony, this was manifestly a comparative or relative statement. It is the undisputed testimony that there was light enough for plaintiff to see and, recognize the features of a workman 30 feet south and about 20 feet below him; and that, had he looked, he could have seen whether a car was or was not along the platform; and that, when he came on to work, he did see no car was present; and that there was sufficient light so he could see all of his surroundings well enough to describe, them in detail. He gave details as to his surroundings at the very time, which demonstrates that, while it may have been darker at this time than it was at other times, or than it would have been if more artificial light had been furnished, that in no reasonable sense can it be claimed it was so dark as to prevent his readily seeing that no car was standing on the edge of the platform — and he did see there was none.

5. Master and servant: dangers unavoidably attending work. The proximate cause of his injury was a slip on ice. There was no ice when he went to work. It came into existence because some ice would necessarily fall upon the platform as plaintiff worked, and because of his work. He slipped because of ice that he knew must accumulate because of the work, — work that he had been doing for more than a year. He was hurt because his bodily movements did not take into consideration what he knew to be a necessary incident of his work.

The defendant was not negligent, and the plaintiff was. The court rightly directed verdict against him. — Affirmed.

Preston, O. -T., Ladd and Evans, JJ., concur.