148 Iowa 241 | Iowa | 1910
The plaintiff was a section foreman in the service of defendant at Winthrop, Iowa. In the- work of repairing and mending the railway track he and his gang of three men were supplied with, a push car on which tools or materials were transported or moved from place to place. It was their duty to be on the lookout for trains, and in proper time before the arrival of one to remove the push car from the track. On the day in question, plaintiff and his men were in the line of duty, moving their car with their -tools and repair material along the track to 'the eastward, when they discovered the approach of a train and set abou-t the work of clearing the track. The car was furnished with a convenient handle at each of it-s four corners, and the gang, following the usual method, each laid hold of a handle and, lifting the vehicle, carried it to the north side of the track. The snow at that .point was about eighteen inches deep. It was the custom in thus removing the ear to let it down at the word or call of the foreman or some other member of the gang when it had been carried to a safe distance from the track. On this occasion, when the car had cleared the north rail but a short distance, and while the plaintiff was carrying the northwest corner, some one of the other three men either purposely or accidently let go his hold, causing plaintiff to fall "in such manner that he was -struck by the handle or frame of the
It is generally held by all courts where statutes similar to our Code, section 2071, have been enacted, that the provision is intended for the benefit of those railway employees, no matter in what department of service, whose duty for the time being exposes them to the dangers and hazards peculiar to the operation of railways. And surely when a man, in pursuance of his employment, rides or pushes or manages a hand car along the rails to transport tools or material or men, his service is as certainly “connected with the operation of a railway” as is the man who handles the throttle upon an engine which pulls or pushes a car loaded with gravel or other road building material. So, also, the danger- to which the section hand is exposed in moving his car along the track from the approach of trains having the right of way is danger peculiar to railroading, and as his duty requires him, under such circumstances, to remove his car from the rails until the train has passed, and then to replace i-t and proceed, such service never ceases to be connected with the operation of the railroad, and, so far as any danger attends such service, it must be classed with the hazards of railroad operation. If the railway company should provide side tracks and switches for the benefit of seetionmen and their hand cars, their work in taking to such side tracks for the passing of
There is nothing in Dunn v. Railroad Co., 130 Iowa, 580, inconsistent with the view here expressed. In that case no question of the use of a hand car arose. The only inquiry there was whether the injury caused by'a passing engine striking an iron bar negligently left on the track and hurling it against a section hand standing on the right of way was of -the class covered by Code, section 2071, and a majority of this court held that it was not. Until the majority recedes from that holding, it remains the law of this state for cases of that kind; but neither in fact or principle is the case at bar within the rule of that precedent. In this connection we may as well refer also to the case of Andrews v. Railroad Co., 129 Iowa, 162, which is cited by appellee as having an important bearing on the questions presented by the present appeal. In that case plaintiff was injured by the falling or dropping of a hand car which he and others were carrying. No negligence was charged against the fellow workman who dropped the car, nor was the question raised whether in carrying the car they were engaged in the operation of a railroad within the meaning of our statute. The negligence alleged was the act or omission of the foreman in permitting the coming train to get too near before clearing the track, whereby the work had to be done in such a hurry that it
Does the statement made by Penny: “I dropped the car. I didn’t mean to. Have I hurt you ?” — introduce any element into the case which obviates the result above indicated ? We think not. Independent of this statement, there is evidence that be is the one who dropped the car, and the effect of that proof is not neutralized by his declaration that be did not mean to do it. But even conceding the literal truth, it is not inconsistent with bis alleged negligence. Counsel is not correct in the assumption that, if an act is inadvertent, it is therefore not negligent, for, generally speaking, the very essence of negligence is inadvertence. . Only the malignant or vicious intend injury to others, and such intentional injury is willful, but not negligent in the proper sense of the word. Were there any evidence here that Penny lost bis bold by reason of slipping or stumbling, or other cause consistent with due care on bis part, the cases of Bolsem v. Railroad Co., 140 Iowa, 73, and Tibbets v. Railroad Co., 138 Iowa, 178, and and other precedents of that class cited by appellee would be pertinent; but tbe record discloses nothing except that Penny, whose duty it was to bold up bis corner until tbe word was given, dropped it. Presumptively such act was voluntary, and, being a violation of the duty which be owed to others engaged in lifting tbe car, it was negligent. His
For the reasons stated, it was error to direct a verdict, and the judgment appealed from is therefore reversed.