197 Iowa 1216 | Iowa | 1924
This action is brought under the Federal Employers’ Liability Act.
Appellant admits that appellee was engaged in interstate commerce. Appellee was employed as a car repairman. It is his contention that he was engaged with three other workmen in moving a set of car wheels. This set consisted of two wheels, fastened together by an axle. In the process, “wheel sticks” are used. These are about five feet long. As we understand, the operation consists in putting two of these sticks under each end of the axle and lifting thereon, whereby the wheels are raised about an inch and a half from the ground. Four men are en
“It is also clear that the plaintiff did not assume the risk arising out of the negligence of another employee; for this he could not anticipate or guard against. Caverhill v. Boston & M. R. Co., (N. H.) 91 Atl. 917; Norfolk & W. R. Co. v. Earnest, 229 U. S. 114. Indeed, this rule is so well settled that no authority need have been cited in its support.”
See, also, Reed v. Dickinson, 184 Iowa 1363.
The evidence is in direct conflict as to what in fact occurred at the time appellee claims the injury took place. The fact that the greater number of witnesses disputed appellee’s testimony did not alone entitle appellant to a directed verdict. The jury
Appellant relies upon Andrews v. Chicago G. W. R. Co., 129 Iowa 162. The case is distinguishable from the ease at bar. It did not arise under the Federal Employers’ Liability Act. In that case there was no claim that it ivas understood that a warning was to be given if one of the workmen was about to drop the article they were lifting. In fact, in that case no negligence was charged against the fellow workman.
The ease at bar is more nearly like Cahill v. Illinois Cent. R. Co., 148 Iowa 241, where railroad employees were moving a hand car, when one of them who was holding up one corner let it fall, without warning, although it was shown that it was customary to give such a warning. We said:
“Presumptively such act was voluntary, and, being a violation of the duty which he owed to others engaged in lifting the car, it was negligent. ’ ’
A like custom was pleaded in this case, and there was evidence tending to sustain it.
The case is also similar to Reed v. Dickinson, supra, which arose under the Federal Employers’ Liability Act. In that case, the plaintiff was engaged with other employees in moving steel rails by the use of pinch bars. The evidence tended to show that, whenever the parties got a rail loosened, they should warn each other. While plaintiff was standing with his bar in the bolt hole of the rail, pressing, the fellow workman, without warning, and without giving the signal he was instructed to give, suddenly jerked his rail loose, causing plaintiff’s bar to strike him and cause an injury. We held that that case was one for the jury.
Under the record in this case, the court did not err in submitting the case to the jury on the question of negligence. The
It follows that the judgment appealed from must be— Affirmed.