Rehard v. Miles

I respectfully dissent. The record shows appellees left everything in the hands of Johnson, reserving no discretion or control to themselves. He had full charge and control, gave all orders and superintended the work.

Appellant is entitled to the benefit of the most favorable view of the evidence rule. Johnson testified:

"I told him [Ed Rehard] to go in and help Snelson take off this section of the center pole."

Considering the record in the light most favorable for appellant I think there is no justification for the conclusion reached that he was not working under the orders and domination of Johnson or that he voluntarily placed himself in a position of danger or that he was under any duty to inspect the pins which supported the platform. Appellant was a common laborer and was working on this job as such. His place of work was on the ground, not upon the derrick. There is evidence that he was familiar with the equipment, although he did not know how it was lowered. He looked at the pins used on another job but it does not clearly appear that he had inspected these particular pins. As he crawled through the small opening in the bottom of the silo he looked up but could not see whether the platform was then resting on the pins.

The duty of inspection is the duty of the master and not that of the servant. The master and the vice-principals have the duty of making and continuing inspection. Warner v. Spalding, 186 Iowa 137,172 N.W. 263. Nor may the master delegate his positive duty to furnish reasonably safe equipment and a reasonably safe place to work. Wilder v. Cereal Co., 134 Iowa 451, 109 N.W. 789; Parkhill v. Van Storage Co., 169 Iowa 455, 151 N.W. 506; Hartshorn v. Mardis Co., 165 Iowa 454, 146 N.W. 70; Correll v. Williams Hunting Co., 173 Iowa 571, 155 N.W. 982, Ann. Cas. 1918A, 117; Johnson v. Minneapolis St. L.R. Co., 183 Iowa 101,165 N.W. 51.

Nor is the right of recovery of an injured employee barred by the negligence of fellow servants which may have combined or co-operated with the negligence of the master in failing to furnish a reasonably safe place to work or reasonably safe equipment. Gordon v. C.R.I. P. Ry. Co., 129 Iowa 747,106 N.W. 177; Kroeger v. Marsh Bridge Co., 138 Iowa 376, 116 N.W. 125; Huggard v. Refining Co., 132 Iowa 724, 109 N.W. 475; Donnelly v. Cement Corp., 168 Iowa 393, 148 N.W. 982.

The immediate cause of the accident was the bending down of these two 5/8-inch steel pins, which supported the heavy platform. These particular pins were first used on this job. There was no claimed defect in the machine other than in these pins. It does not appear by whom or how the pins were made, or that they were ever inspected. They were made from used steel silo hoops furnished by appellee Orris, which apparently had been exposed to the weather for an indefinite time. Johnson, who was not shown to have had any particular knowledge of metals, testified that they were of the best material he knew of and the steel was a little harder than that ordinarily used by blacksmiths. Assuming Johnson knew the hardness of steel ordinarily used by blacksmiths, there is nothing in the record to show the meaning of this expression or that the material used was sufficient and proper for this particular purpose.

The majority decision accepts this as sufficient compliance with the standard of care required for the supports for a platform under which men were ordered to work. I do not agree that the making of these pins from this scrap metal by some unidentified person in an undisclosed manner so conclusively establishes the exercise of the care to furnish reasonably safe equipment positively required of the master, as to warrant the direction of a verdict upon that ground. Bell v. Brown, 214 Iowa 370,239 N.W. 785.

The decision concedes that the tensile strength of the pins was not tested and suggests the difficulty of testing them before they were used. In this case the probable results from the failure of these pins were serious. Therefore, there was a definite duty to test them. Appellees might have been excused from the duty of testing these pins had they been secured from the manufacturer of the derrick, or other reputable manufacturer who specialized in making such pins. But it does not follow that this excuse would apply to pins made by anyone from anything. Nickerson v. Walker, 179 Iowa 1281, 162 N.W. 768.

The decision states the pins had been tested by actual use on this job. To say the least, this was a unique method of testing equipment upon the tensile strength of which human safety depended. The fact that the second-hand material withstood the strain temporarily does not prove that it was safe or had sufficient strength to properly perform its functions. Nor would the fact that other pins had not failed prove the strength of these defective pins as a matter of law.

I am unable to determine with certainty whether or not the decision is based in part upon the theory that appellant assumed the risk of injury by obeying the orders to work under the platform. If this is the holding, I think it is contrary to a long line of previous decisions and code section 1495. Bell v. Brown, 214 Iowa 370, 239 N.W. 785; Oestereich v. Leslie, 212 Iowa 105,234 N.W. 229; Bruns v. Northern Brick Tile Co., 152 Iowa 61,130 N.W. 1088; Nelson v. Smeltzer, 221 Iowa 972,265 N.W. 924.

I think the case was for the jury.

BLISS, J., joins in this dissent.