tion. There was For the reasons indicated, the appeal must The proceeding is triable here as an of the S. E. 14, or if she had appeared before the board as a complainant and as the equitable proceeding, and the appeal brings alleged owner of the S. E. 4, there would the case before us de novo. be some reason for treating the description no judgment or order from which the apIn any event, the in the notice as an obvious clerical error. pellees could appeal. And, again, if she had properly described question of jurisdiction necessarily inheres the assessed land in her notice of appeal, in the case at all stages. there might be ground for holding her appeal good notwithstanding that the com- be dismissed. plaint before the board of supervisors was made in the name of another, and perhaps a previous owner. It is shown by the evidence that there was no such company as the Bradford Real Estate Company, but that there was a corporation in Estherville known as the Bradford Company. er the appellant was connected with such Whether she accompany does not appear. quired her title from such company does not appear. If the notice of appeal under these conditions is sufficient to permit review of the assessment against the S. E. 4, it would be equally sufficient to permit a review of assessment against any other quarter section which the appellant might have acquired in the district. Wheth WADDELL v. BURLINGTON BASKET CO. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1089, 1090, 1092-1132; Dec. Dig. §§ 286, 289.*1 2. MASTER AND SERVANT (§ 156*)— LIABILITY FOR INJURIES-WARNING SERVANT. In was not a part of his duties, and was outside the scope of his employment. Manifestly it would have been sufficient to permit a review of assessment against the A factory employé working on a gang saw N. E. 4 of section 14-99-33 if the appel- table was told by the superintendent, when emHer ployed, that another employé would feed the lant had acquired ownership of same. notice of appeal asserted ownership on her boards through the machine, and that he should take the strips as they came through, put them on a truck, and hand the unsawed pieces back part of the N. E. 14 of section 14. There is Splinters frequently nothing in the evidence to contradict such to the other employé. assertion. For aught that appears she had caught between the saw and the edge of the slit in which it was set, which the injured emacquired the N. E. 14 before she served her ployé had seen the other employé remove. notice. In such a case, could she ask a re- attempting to pull such a splinter from below view as against the assessment of both quar- the injured employé's hand was carried against the saw. Held, that the employer's failure to ters, or only as against that of one? If only warn such employé of the danger was not negone, which one? The courts are loath to per-ligence, since the act by which he was injured mit fatality to result from mere mistakes, but there is a limit beyond which they cannot go. In order to confer jurisdiction upon the district court, it was incumbent upon the appellant to perfect an appeal within 10 days. The sum of the situation before us is that a stranger to the record of the board of supervisors served a notice of appeal from the assessment against specific land and asserted therein her ownership of such land. In the district court she asked a review of the assessment against other We land. The conclusion is unavoidable. think that the jurisdiction of the district court was limited to a review of the assessment against the N. E. 4. [2, 3] 2. It is urged by the appellant that this question was adjudicated against the appellee in the court below, and that it The appellees cannot be reviewed here. raised the question first by motion which was taken by the court under consideration to be determined at the submission of the case. The appellees raised the same question by their answer. The trial court confirmed the assessment on the merits, and made no ruling on the question of jurisdic [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 311, 312; Dec.Dig. § 156.*] 3. MASTER AND SERVANT (§ 129*)—LIABILITY FOR INJURIES-GUARDING MACHINERY. Plaintiff Plaintiff was employed on a gang saw table containing a slit in which were set saws, the parts of which above the table top were properly guarded. The table below the top was also covered on three sides. reached in from the fourth side to draw out a splinter which had been caught between the saw and the edge of the slit, and had his hand drawn against the saws. Held, that the failure to cover the fourth side was not the proximate cause of the injury, since such a covering would not have protected those attempting to remove such splinters, but would merely have required the removal of the covering. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*] Appeal from District Court, Des Moines Hubbell & Hubbell, of Trenton, Mo., and For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes LADD, J. The defendant operates a bas- and about 2 feet long. They were making ket factory, and in June, 1911, employed about 3 or 4 little slats out of one piece; plaintiff, then 18 years of age past, to work they were coming right through one aftat what seems to have been called the "gang er the other, and as they came through I saw table." This table was about 4 feet received them and put them on the buck. wide, and a little longer than wide. The While I was doing this work I heard a buzzframe was of iron and about 21⁄2 feet high, ing. I reached down and pulled it out. I with a top which was adjustable, being rais- was standing facing the table at this end ed or lowered by a crank, so as to adjust (referring to the trial table), and I reached the saws to boards of different thickness. down like that (indicating) to get hold of it, There was a slit near the center of the table and started to get hold of it, and got it lengthwise about 15 inches from the south loosened up a little bit, and it jerked my side, through which three saws attached to right hand up into the saw. There was a shaft below revolved. These saws were nothing below there to interfere with reach14 inches in diameter, and about 4 of an ing under the saw from the side; nothing inch apart, and ordinarily extended above but the slanting board on the end and some the top 3 or 4 inches. They were properly sawdust in there. The stick was wedged in covered above. A roller carried the board next to the level between that and the saw. or timber into the saws, and as they were I had to reach under the two saws. It came sawed in strips these were carried through down below the saws about six inches. (The to the other end. There was an opening into stick that was clogging the saw that I heard the floor below into a suction pipe through buzzing.) It was leaning a little toward me. which the sawdust was drawn out of the I stooped down and reached under the ta building by fans. Boards were at either end ble, and got hold of the stick about six inchto run the sawdust down, and on the north es below the edge of the saw, and then it side the space was covered with gearing. all happened just in a second. I started to On the south side there was an iron below pull the stick down, and it just took my the top extending down about 5 inches, and hand right up into the saw. Never pulled one at the bottom, also 5 inches wide, about a stick out of the saws before, but I have 21⁄2 inches above the floor. Plaintiff testifies seen others do it. I couldn't state his name. that: "At the south side of the table there I was a stranger there. Fneske was the was a leg 5 inches wide coming down from only one that worked about the saws while each corner. Then there is the circular part I was there. I have seen him pull these of the frame about 2 or 21⁄2 inches from the sticks out of the saws at other times; I floor; that is, 5 inches wide going from leg can't say how many times. I couldn't very to leg. This is on the south side of the ta- well describe the stick I started to pull out. ble, or right-hand side of the table as II know it was about 6 inches below the saws. stood. There is also a frame in the center I believe it was a circular piece. of the machine between the legs. It goes When I reached in there to get hold of the down from the top of the frame to the low-stick, Mr. Fneske was at the other end of er frame. This is 5 inches wide-same width as the legs. There is also a cross-piece at the south end running from the bottom of the west leg up to the top of the east leg. This cross-piece is an inch wide." He testified that otherwise the south side was open, but Fneske that it was covered by boards set in grooves. Fneske fed the strips as they came through, and plaintiff placed them on a truck, and handed any part not sawed back for Fneske to run through again. The plaintiff explained how the work was done, saying that Fneske would start a board in at the feeder's side, and it would run against a straight edge and "the saws would saw off three pieces, and I would receive the boards from the saw. The feeder would be handling three pieces of boards at the same time; I mean following each other. These being short pieces he would start them in, and the rollers or feeders would carry them through to my side. I would get the strips and put them on the truck, and throw the board back. Would take the strips with the left hand and the board in the right hand. * the table. He said nothing to me, and I * At the time I was hurt we were sawing boards which had all been sawed to On cross-examination the witness testified about 2 inches wide and about 3 inches thick, | further that, when he heard "whirring noise ness Lumber Co., 69 Wash. 196, 124 Pac. 492; Harney v. Railway Co., 139 Iowa, 361, 115 N. W. 886. Doubtless Fneske removed the sliver by jerking it quickly and letting go, and thereby avoiding the danger of injury to which plaintiff was exposed. In other words, the injury was incident not so much in what was attempted as in the manner of doing it, and, of course, such a danger cannot as a matter of law be said to have been open and obvious. If the plaintiff in doing what he did was acting within the scope of his employment, we think the issue as to contributory negligence fairly for the jury, and the danger one of which the jury might have found he should have been warned. or buzz of some kind," he looked and saw the | Minn. 186, 116 N. W. 207; Barg v. Bousfield, sliver next to the guide, and stepped around 65 Minn. 355, 68 N. W. 45; Harkins v. Vethe corner of the table, "looked under the frame, looked clear under there, and saw the saws revolving and reached my left hand under the saws to get hold of the stick; had a cotton glove on. I got my hand down far enough so I could see clear under the frame, and see the saws and the end of the stick, and reached my hand right under these revolving saws, and got hold of the end of the stick; it jerked my hand up in there. This was the first time I ever did that." As the lumber was green the sawdust was usually wet, and he had pushed it through a hole with a 10-foot pole, and also had frequently done so with his hand. The plaintiff had had no previous experience in the operation of a saw, and had been in the employment of the defendant but three months. He appears to have been of average intelligence. The superintendent in employing him told him that Fneske would feed the boards through the machine, and that he should take the strips as they came through the saws, and put them on a truck, and hand the pieces unsawed back to Fneske, so he could put them through again. He gave him no instructions as to anything save that he should stand in front of the machine, and receive the slats and boards. [2] 2. A more serious question is whether in undertaking to remove the splinter the plaintiff was acting within the scope of his authority. The evidence leaves no doubt but that he was neither directed to do this nor to push the sawdust down the pipe with a stick or by hand, and the fact that the superintendent in directing him what to do said nothing of these matters, but required him merely to remove the slats to the truck, and hand the unsawed part of the board or timber back to Fneske, tends to negative any Such is the evidence in so far as material inference that he was to do something else. to the determination of the questions present- To remove the splinter then was no part of ed. The grounds of negligence alleged in plaintiff's duty, and the master having inthe petition were: (1) That defendant failed structed him specifically what was required to comply with the statutes requiring the was under no obligation to direct him consaws to be properly guarded; and (2) failed cerning that which neither of them could to instruct or warn plaintiff of the dangers well have expected he would undertake. involved in the operation of the saw. On True, these men were working at opposite the other hand, it insisted that plaintiff was ends of the same table in plain view of each guilty of contributory negligence. These other, but each with his particular duty aspropositions may be separately considered, signed. Fneske operated the saws, and had and, for convenience, in reverse order. previously removed the splinters as was his duty, and plaintiff in attempting to do this was quite as much outside the scope of his employment as though he had undertaken to operate the saws in Fneske's stead, or had stepped to another machine nearby and tried to do something in connection therewith. See Stodden v. Anderson Mfg. Co., 138 Iowa, 398, 116 N. W. 116, 16 L. R. A. (N. S.) 614. The defendant through its superintendent was not required to instruct or warn him of the danger in doing something for which he was not employed; and, even though in a spirit of helpfulness he undertook the work not exacted from him, he did so at his own and not at the master's risk, and therefore is not in a situation to complain of any omission of his employer to properly instruct him. In other words, the defendant cannot be held to have been negligent in not instructing the plaintiff of the danger involved in undertaking to perform the work of another, and the trial court rightly so held. [1] 1. It is to be inferred from the evidence that splinters were frequently caught between the saw and the straight edge, for plaintiff testified that he had seen Fneske remove them in the way he attempted. That the saws extended below the top and revolved was as well known to plaintiff as to the superintendent, and he knew as well as any one the danger to a hand coming in contact therewith. What he may not have known was the danger in pulling on a splinter from below, of the teeth of the saw catching it, and carrying the hand against the saws. An inexperienced person would not be likely to appreciate the peculiar danger from this source. Because of the natural effort to retain the stick upon being caught by the saw, the hand likely would be drawn in, and this was a danger of which plaintiff might have been found, if acting within the scope of his employment, entitled to warning. Wilder v. Great Western Cereal Co., 130 Iowa, 263, 104 N. W. 434. See, also, Martin v. Madden [3] 3. Nor do we think it should be said Shingle Co., 168 Mich. 175, 130 N. W. 615; that as to plaintiff these saws were not propMastey v. Villaume Box & Lumber Co., 104erly guarded. They are conceded to have been covered on three sides and on top. The splinter when there was no other guard only question then is whether they were on the south, or when there was a guard, properly guarded on the south. An iron and he had removed it before the attempt plate, as appears, extended from the top of the frame down about five inches, and from one leg to the other and one at the bottom of the same width 22 or 3 inches above the floor. The legs at the corners were about 5 inches wide, and at the center there was an iron plate which extended from the top of the frame down to the cross-plate below, which was about 5 inches wide. Besides there was a cross-piece from one end running diagonally "from the bottom of the west leg up to the top of the east leg" about an inch wide. to take out the splinter? Any guard which was practicable would not have obviated the danger in actually removing the splinter or have prevented the attempt from so doing, though it possibly might have served as a danger signal. The design of the statute exacting that all saws shall be properly guarded is that something shall be placed near to or over them in such a manner and of such material as to protect employés coming in proximity therewith or using them from being injured thereby. As said in Kirchoff v. Creamery Supply Co., The annexed photograph indicates better 148 Iowa, 508, 123 N. W. 210, a saw is than words the covering afforded: "properly guarded when the device attached The saws were 15 inches back from the | is of material and construction, such as south edge of the frame. Manifestly, an will shield those operating it or moving employé at the table in the performance of near it from contact therewith when in his duties would not ordinarily come near enough to the saw below to be drawn in contact therewith unless such were his purpose; and, of course to such a one, the movable covering would furnish no protection, for if bent on reaching the saws the covering would merely involve removal of the covering in order to reach them. Indeed, Fneske testified that boards were set in grooves in the iron plates, and that these covered the south side at the time of the injury, and, if this were so, plaintiff must have removed the boards to do precisely what he undertook to do in the absence of covering, according to his testimony. What difference can it make whether plaintiff were injured in trying to remove a motion, at least when practicable without unreasonably interfering with the efficiency of the machine. If not reasonably suitable and calculated for this purpose, the cover is not proper, and the proprietor, in omitting to obey the mandate of the statute, is guilty of negligence." See, also, Miller v. Cedar Rapids Sash & Door Co., 153 Iowa, 735, 134 N. W. 411; McCarney v. Bettendorf, 136 N. W. 920. It is apparent from the description of the table that no other protection was essential to shield those ordinarily working at or coming in proximity to the table from injury. The room was filled with all sorts of machinery, and employés as well as others were aware that this was likely to be at any table or bench, able is breached by proof that the horse is A warranty that a horse sold is merchantvicious. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 803-805; Dec. Dig. § 284.*] 5. APPEAL AND ERROR (§ 882*)-REVIEW-INVITED ERROR. A defendant who, when sued for the price of a horse, pleaded warranty of soundness and breach thereof may not complain because the court submitted the issue where there was some testimony supporting the allegation of warranty of soundness and where defendant did not request the court to withdraw the issue. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 8 882.*] and the defendant was not required to an- | 4. SALES (§ 284*)-BREACH OF WARRANTY— EVIDENCE. ticipate that workmen employed otherwise in approaching this one would be likely to crawl or reach under it so as to come in contact with the saws when in motion. Green boards or timber were sawed that the slats might be more easily bent, and therefore the sawdust was damp, and it was frequently necessary to crowd it with a stick or by hand down the pipe, and it would not seem to the majority of the court practicable in view of this to stop to remove the boards from the south side every time this was necessary. No other shield then was required to protect the workmen not required to reach under the table or those coming near from the danger of contact with these saws extending below the top; but, if this were not so, any guard that might have been devised would necessarily have to be removed in extracting a splinter, so that, whatever device were employed, this would not shield those operating the saws or moving near them from exposure to the hazard in attempting to extract a splintering taken away, and if there were no words of when caught between the saw and straight edge. Therefore it cannot be said that the plaintiff's injury was the proximate result of any omission to guard the saw. We reach the conclusion on these grounds that the court rightly directed the jury to return a verdict for the defendant. Affirmed. STEPHENS v. BRILL. (Supreme Court of Iowa. April 8, 1913.) 1. APPEAL AND ERROR (§ 1033*)-HARMLESS ERROR-ERRORS IN INSTRUCTIONS. The error, if any, in adopting the pleadings of a party in stating in the instructions his contentions should ordinarily be deemed prejudicial only to the adverse party. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. § 1033.*] 6. APPEAL AND ERROR (§ 1033*)-HARMLESS ERROR-ERRONEOUS INSTRUCTIONS. Where, in an action for the price of a horse sold at auction, the issue was whether the horse was sold under a warranty, and there was evidence that the auctioneer announced that horses taken away, and that there were no words of sold must be tried on the premises before being warranty, an instruction that if the auctioneer announced that horses must be tried before bewarranty, the verdict must be for the seller imposed on the seller the burden of showing that there was no warranty and that it was announced that all horses must be tried before being taken away, and the buyer was not prejudiced thereby. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4052-4062; Dec. Dig. § 1033.*] 7. APPEAL AND ERROR (§ 1066*)-HARMLESS ERROR-ERRONEOUS INSTRUCTIONS. Where evidence outside of the issues raised by the pleadings was received and submitted in an instruction, but the evidence was not calculated to prejudice the jury, and the false issues did not divert the attention of the jury from the real issue, the instruction was not prejudicial. Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] Appeal from District Court, Sac County; This is an action to recover the purchase price of a horse sold at auction. The defendant pleaded a warranty and breach thereof and a rescission of the contract of purchase 2. TRIAL (§ 233*)-INSTRUCTIONS-ADOPTION on account of such breach of warranty. UpOF PLEADINGS. on trial to a jury, there was a verdict and While the court in its instructions should judgment for the plaintiff. The defendant make the issues as plain as practicable, re-appeals. Affirmed. gardless of the language of the pleadings, the court may adopt the pleadings where they are concise and clear. Chas. D. Goldsmith, of Sac City, for appellant. Elwood & Stanfield and Malcolm Cur [Ed. Note. For other cases, see Trial, Cent. rie, all of Sac City, for appellee. Dig. 8 527-530; Dec. Dig. § 233.*] 3. TRIAL (§ 296*)-INSTRUCTIONS-MISLEADING INSTRUCTIONS. Where, in an action for the price of a horse defended on the ground of breach of warranty, the court charged as to the claim of defendant in his answer, an instruction that the burden was on him to prove that the horse was warranted substantially as stated in the answer was not objectionable as referring the jury to the pleadings, but only referred to the answer as previously set forth in the charge. EVANS, J. The defendant purchased at an auction sale a certain three year old colt, the property of the plaintiff, for $102. As indicated by the record, the auction sale was one of a series conducted at Sac City by an auctioneer, Lookingbill, whereby he offered and put up for sale the property of various owners who chose to employ his facilities for that purpose. It is the contention of the de[Ed. Note.-For other cases, see Trial, Cent. fendant that the auctioneer warranted the Dig. 88 705-713, 715, 716, 718; Dec. Dig. horse as follows: "The said auctioneer, in 296.*] the presence and hearing of the said plain •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |