
    Charles V. Brusseau v. The Lower Brick Company, a Corporation; George Fairchild, Egbert Fairchild and Henry R. Little and Lower Brick Company, Co-Partnership, Appellants.
    1 Examination of jurors. Connection with an employer’s casualty insurance company is a proper subject of inquiry on the examination of jurors in an action for injuries to a servant.
    
      2 Master and servant: evidence: admissibility. In an action for injury caused by the breaking of an elevator cable, evidence as to what the commissioner of labor said when he examined defendant’s factory was not compet’ent, there being no showing that he examined the cable..
    3 Same: secondary evidence. Evidence as to whether the labor commissioner made any report to the witness regarding the factory was not objectionable because not calling for the best evidence,-but as the relevancy of the report was not made to appear the exclusion of the evidence was proper.
    4 Instructions. In determining the correctness of an instruction the court’s charge must be considered as an entirety.
    5 Same: harmless error. A defendant cannot complain on appeal of a direction to the jury to deduct from the amount found due the plaintiff any sum paid in an alleged settlement of the claim, on the ground that no counterclaim was pleaded.
    
      6 Argument: misconduct. The question of misconduct in argument is an issue peculiarly within the discretion of the trial court.
    7 Conflicting instructions: prejudice. Although an instruction in an action for negligence authorizing a recovery regardless of any assumption of risk, and, one in which the jury is told that if plaintiff had assumed the risk he could not recover, are contradictory, yet where there is no evidence to sustain the plea of assumption of risk no prejudice arises.
    8 Master and servant: safe machinery: instructions. A master is only required to exercise ordinary care and prudence in furnishing safe machinery with which employés are to work, and the instructions in the instant cáse when construed together are held to state the rule.
    
      Appeal from Woodbury District Court.— Blow. William Hutchinson, Judge.
    Thursday, February 7, 1907.
    Action for damages caused by the breaking of an elevator cable. Judgment was entered for plaintiff. The defendant appeals.—
    
      Affirmed.
    
    
      M. L. 8ears, for appellants.
    
      F. F. Grill, for appellee.
   Ladd, J.—

The plaintiff was an employe of the defendant, and at the instance of its foreman was engaged in removing building blocks from the upper floors of its building. He had placed about one hundred and twenty of these blocks on a car and run it on the freight elevator. As this was descending, the cable broke, precipitating him, with the load, to the bottom, and seriously injuring him. Several errors are complained of as having occurred in the trial.

I. The jurors were examined on voir dire with respect to their connection with any employer’s casualty insurance company. A like examination was approved in Foley v. Cudahy Packing Company, 119 Iowa, 246, and since then has been upheld by the Supreme Court of Wisconsin. Howard v. Beldenville Lumber Company (Wis.) 108 N. W. 48. See also, Antletz v. Smith, 97 Minn. 217 (106 N. W. 517). The inquiry was rightly permitted.

II. The manager of defendant testified that the State commissioner of labor inspected its works about two weeks before the accident. Notice from him that three screws on shafting were not guarded was produced, and, after the witness had said he had had no conversation with the commissioner concerning the elevator, he was asked whether that officer had made any reference to the elevator, whether he had recommended any changes or repairs other than as indicated in the notice, and also whether anything was said concerning the elevator. The manifest object of .each of these inquiries was a negative answer upon which to build an argument that defendant was not put upon inquiry as to the condition of' the cable. But it was not shown that the commissioner had examined the cable, and, if he had not, the defendant would have no right to rely upon anything he might say. Moreover, the witness had previously stated that he had said nothing on the subject, and there was no occasion for repetition.

The foreman of defendant was asked whether the commissioner had made any report to him about the plant. As this question merely called for the fact as to whether a report had been made, it was not vulnerable to the objection of not calling for the best ___ evidence. The relevancy of such report was not made to appear, however, and the ruling excluding an answer was rightly sustained on this ground.

III. Most of the exceptions to the instructions given are disposed of by adverting to the well-established rule that the charge to the jury must be considered in its entirety. When so considered, the suggestion that paragraph No. 4% withdrew all defenses save that of settlement, and No. 5 all except that of defendant’s negligence, and ]S[o. 7 assumed that the cable was defective, prove to be unfounded.

Instruction No. 12 is criticised for directing the jury to deduct the $290.40 alleged to have been paid in settlement from the amount of damages to which plaintiff was found to be entitled, on the ground that no counterclaim was pleaded. Manifestly this was not prejudieial to defendant. If, however, counsel think otherwise, the error may be corrected by adding to the judgment the credit said improperly to have been allowed. No error was involved refusing the instructions requested; for, in so far as correct, these were included in those given.

Whether there was any misconduct on the part of counsel in addressing the jury was an issue peculiarly within the discretion of the trial judge, and we are not disposed to interfere with his conclusion.

IV. But two questions requiring attention remain, and these are whether the issues of assumption of risk by plaintiff and negligence of defendant were properly submitted to the jury. The answer set up that plaintiff j j . ■“ . had assumed the risk of the cable being defec- ^ ^ ° tive, and the court submitted that issue to the jury in the ninth instruction. But in instruction No. 4% the jury were told that, if the defendant was negligent and the inquiry resulted therefrom without fault on plaintiff’s part, he was entitled to recover, unless they found that there had been a settlement. Manifestly these instructions were contradictory in saying that recovery might be had regardless of any assumption of risk, and that if plaintiff had assumed the risk he could not recover. Quinn v. Railway, 107 Iowa, 710; Meyer v. Boepple Button Co., 112 Iowa, 51; Christy v. City Ry. Company, 126 Iowa, 428. An instruction similar to No. 41/2 was held to have been without prejudice in Stomme v. Hanford Produce Company, 108 Iowa, 137, owing to the manner of submitting all the issues later on in the instructions, qnd in Wilder v. Great Western Cereal Co., 130 Iowa, 263, prejudice was obviated by the fact that the issues Avere such that a finding of the company’s negligence necessarily negatived any assumption of risk by the party injured. The instructions in the case at bar are necessarily conflicting, and therefore erroneous, but were not prejudicial, for the reason that the record is void of any evidence tending to show that plaintiff had knowledge of the condition of the cable or appreciated the danger involved in operating the elevator with it. The mere fact that he had opportunity of ascertaining its condition by investigation, while assisting another in repairing the machinery connected therewith without exposing the cable to vieAv, when inspecting it Avas no part of his duty, did not charge him with knowledge, and he must have appreciated the danger in order to have assumed the risk. There was no evidence upon which to submit the issue, and in doing so the instructions were more favorable to appellants than they were entitled to have them.

V. The rule has been long established that the master is required only to exercise reasonable care in furnishing employes safe machinery and a safe place to work. Martin v. Des Moines Edison Light Co., 131 Iowa, 724; Armour & Co. v. Russell (C. C. A.) 144 Fed. 614. Counsel for appellant contend that the charge of the court is open to the criticism of having laid down the rule as exacting safe machinery with Avhich to work, regardless of the degree of care required to furnish it, as Avas done by the trial court in the case last cited. The sixth instruction did say that the machinery as originally installed must have been reasonably safe. Not a particle of evidence was adduced tending to shoAV that it Avas otherwise. The design in exacting reasonable care from the master in this respect is that the machinery shall be safe for the employé’s use, and the presumption in favor of the performanee of this duty is always indulged until the contrary is shown. Therefore it was to be inferred that defendant had exercised reasonable care in installing the elevator, and, as it is' a matter of common knowledge that the result of such exercise of care is a reasonably safe elevator, “the instruction exacting this condition when originally constructed was without prejudice. If evidence other than this inference that it was originally safe in the respect complained of were to be exacted, it may be found in the twelve years’ use of the elevator without a change of cable. The rules with respect to the necessity of reasonable care in the matter of inspection and repair were correctly stated, and the evidence such that the defendant might well have been found negligent in these respects. True, the court at the beginning of. the sixth instruction said it was the duty of defendant “ to see to it that such machinery, when furnished and placed in position for use, is kept in a reasonably and ordinarily safe condition for such use.” That was its duty, which was discharged by the exercise of ordinary care in its accomplishment, and the jury must have so understood; for this sentence immediately was .followed by an explanation of how it was to be discharged, namely: To exercise over such machinery, when placed in position for use, such a decree of care and watchfulness as a reasonably prudent and careful man would give to like machinery under’ like circumstances.” Later on in this instruction the jury was told that, if defendant failed to keep said machinery in a reasonably and ordinarily safe condition for use,” defendant should be found to have been negligent. This, however, was followed immediately by the explanation: “ But you are instructed that if you find, from the evidence, that the machinery was reasonably and ordinarily safe for the* purposes for which it was used, when placed in position for use, before the defendants can be held liable for defects occurring in the machinery after it has been placed in position for use, the plaintiff must show that the defendants, had knowledge of tbe defects, and that the defect, or defects, rendered it unsafe for such a length of time before the injury that, by the exercise of reasonable pare, they might have remedied the defect, and avoided the injury, or that, by the exercise of such a degree of watchfulness and care as a reasonably prudent and careful man under like circumstances would have given to like machinery, they could and should have known of it for such a length of time before the injury as that they might have repaired the same, by the exercise of reasonable diligence, before the injury happened.”

Any possibility of a misconception was obviated by the instructions following; for in the ninth the jury are plainly advised that the defendants are liable for injuries resulting from defective machinery and appliances furnished its employes, when it has knowledge of such defect, and such defect rendered them unsafe for use, or when they might, by the exercise of ordinary care, have discovered the same, and it is the duty of the employer to exercise reasonable care to .furnish safe machinery and appliances, and to discover defects, if any, therein,” and in the eleventh paragraph of the charge, which, clearly and specifically laid down the correct rule with respect to the defendant’s duty: You are instructed, as a matter of law, that the defendants were not bound to provide machinery which was absolutely safe, nor to insure the safety of its employés under all circumstances, but were only under obligation to use reasonable and ordinary care, diligence, and skill, such as a reasonably prudent and careful person would be expected to use in procuring and furnishing suitable and safe machinery; and, if you find that the defendants exercised such care and diligence in selecting and using and keeping the machinery in repair and in a safe condition for use, they cannot be charged with negligence and the plaintiff cannot recover.” While the statements with respect to safe machinery, standing alone, were inaccurate in the sense of being incomplete, they were not, as explained in connection with the correct rule as to defendant’s liability, misleading. The object had in the'duty imposed on defendant was to provide safe machinery for use, and to this end the measure of such duty was the exercise of ordinary care and prudence.- This was the thought conveyed to the jury in a way that could not well have been misunderstood.— Affirmed.  