130 Iowa 580 | Iowa | 1906
Lead Opinion
Decedent was in tbe employ of tbe defendant as a section hand, and while be, with other members of tbe gang, were engaged in repairing tbe track by putting an occasional new tie under tbe rails thereof, one of bis fellow workmen left a heavy crowbar on tbe ground at tbe side of tbe track, so near to tbe rail that a passing train struck it and hurled it against tbe deceased with such force as to cause a fatal injury. Tbe petition alleges negligence on tbe part of tbe co-employé in leaving tbe bar where he did, and that tbe train which struck tbe bar was negligently operated.
We shall not take the time to review the cases cited in support of our holding, for they have been often cited and discussed, but we call especial attention to the Hathaway Cáse, in 92 Iowa, 337, because it directly answers the appellant’s contention that the repair of the track is essential to the operation'of the road. In that case a workman was injured while repairing an engine in the roundhouse, by the negligent act of a fellow workman. It was held that the repair of an engine or car was not so connected with the operation of the road as to create liability under the statute. The condition of the motive power of a railway, ordinarily is as essential to its operation as the condition of its track, and there is no difference, in principle, between that case and this. It may he well to say in this connection that some of the language used in the Stroble Case has been modified in later cases, but the modification in no way affects the present inquiry.
Nor is the conclusion that we reach in conflict with our own case relied on by the appellant, with one exception which we shall call attention to further along. In Williams v. Railway Co., 121 Iowa, 270, and Jensen v. O. & St. L. Ry. Co., supra, the negligent acts complained of were directly connected with the movement of rolling stock, and the only questions determined were that the plaintiffs were exposed to the peculiar dangers and perils attendant upon the use and operation of railroads. The same statement applies also to the following cases. Keatley v. Railway Co., 94 Iowa, 685 (the first appeal in that case) ; Butler v. Railway Co., 87 Iowa, 206; Pyne v. Railway Co., 54 Iowa, 223; Pierce v. Railway Co., 73 Iowa, 140; Frandsen v. Railway Co., 36 Iowa, 372, which was decided before the present statute became effective. The only case really affording any support for the appellant’s contention is Haden v. S. C. & Pac. Ry.
Dissenting Opinion
(dissenting).— Conceding that the conclu•sion announced is not without the color of support in some of the cited cases, it remains true in my judgment that none of our decisions have gone to the extent of the position affirmed by the majority opinion. Code, section 20Y1, so far as it bears upon the case, as in the following language — “ every corporation operating a railway shall be liable for damages sustained by any person including employes of such corporation, in consequence of the neglect of the agents, or by the mismanagement of engineers or oilier employes thereof, and in consequence of the willful wrongs, whether of commission or omission, of such agents, engineers or other employes, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed.” Now the proposition to which the majority opinion commits us is that, conceding the employment of the deceased to have been such as to expose him to the peculiar hazards of the use and operation of railways, thereby bringing him within the proteetion of the statute; and conceding farther that by the negligence of a co-employe he was struck by a missile set in motion by a moving train, such injury 'gives rise to no right of action because the work in which the negligent co-employé was engaged was not connected in some manner with the movement of the train by which the injury was done. This ruling, I respectfully submit, works a subversion of the manifest spirit and intent of the statute, and, as I hope to show, is opposed to the principles approved in many of our precedents which have been hitherto unquestioned. It is true that in some of the earlier decisions it seems to have been held that to bring a case within the statute both the injured and the neg
This language or its equivalent characterizes the discussion of the statute in several cases and some of comparatively recent date, and yet if there is anything now settled in respect to these questions, it is that the occupation of the employe at the time of his injury need have nothing whatever to do with the train service, or any other service having to do with the movement or operation of trains in order to bring him within the protection of this law. It is sufficient if the work in which he is engaged is of such character, or the place in which he is required to perform it is so located, that while thus properly engaged he is at the moment exposed to the peculiar hazards and dangers created or occasioned by the use or operation of the road. Jensen v. Railroad, 115 Iowa, 404; Pyne v. Railroad, 54 Iowa, 225; Pierce v. Railroad Co., 73 Iowa, 140; Butler v. Railroad Co., 87 Iowa, 206; Deppe v. Railroad Co., 36 Iowa, 52; Akeson v. Railroad Co., 106 Iowa, 54; Haden v. Railroad Co., 92 Iowa, 226. Departing from the dicta and the propositions asserted arguendo in some of the earlier cases, it is now held that “ the kind of labor in which the employé is engaged is not the test of his right of recovery so much as the fact whether in the performance of that labor he is for the time being exposed to the peculiar hazards which arise from or are connected with the operation and use of the road. Jensen v. Railroad Co., supra; Pyne v. Railroad Co., supra; Canon v. Railroad Co., 101 Iowa, 618.
Put it is here argued that conceding the rule to be sufficiently broad to include within its protection a track hand
In Locke v. Railroad Co., 46 Iowa, 113, a train hand was injured, but the negligence causing the injury was that of some agent or employé who failed to protect or repair a bridge. The trial court there charged the jury that if an employé “ whose duty it was to look after the' bridge or keep it in repair ” had been negligent in that respect and thereby caused the accident the company was liable, and this instruction was upheld on appeal. Speaking of the alleged negligence and of the application of the statute thereto the court by Mr. Justice Seevers said “ The negligence consists in the failure to keep the bridge in repair and the duty devolving on the employé which he negligently performed is directly connected with the me and operation of the railway.” If the work of repairing a bridge over which trains must pass is “ directly connected ” with the use and operation of the road, a proposition which seems
In Pierce v. Railroad Co., supra, the plaintiff was a shop hand. Acting upon the order of a superior he went to the passenger station to assist in removing some screens from cars standing there. While attending to the duty under the direction of his foreman he was injured by a movement of the train. In affirming a judgment for the plaintiff we said that even if the employés in charge of the train had no notice of his exposed situation and were therefore not negligent in the premises, then the failure of the shop foreman who was directing the labor to notify the trainmen, was such negligence as would render the defendant liable.
In Frandsen v. Railroad Co., 36 Iowa, 372, the hand car of the section gang had not been fully removed from the track and was struck by a passing train with the result that a wheel was knocked off the hand car and hurled against the plaintiff. The section foreman neither had nor exercised any control over the movement of the train, nor was there any negligence on part of any person having anything to do with such movement, yet the company was held liable. Shall it be said that if a section man leaves a hand car upon or near the track to be struck by a passing train to the resulting injury of a co-employe the company is to be held liable, yet if the same employe negligently leaves a crowbar or sledge hammer in like exposed situation with like resultant injury the company is not liable?
In Smith v. Railroad Co., 78 Iowa, 583, the plaintiff, a snow shoveler, was in a way car riding at night to his place of work. The train had stopped with the way car standing on a bridge. Having occasion to go to the water-
In Akeson v. Railroad Co., 106 Iowa, 56, the negligent employe and the employé injured by such negligence were both coal shovelers. The injury was occasioned by the act of one of the shovelers who being on the engine which they had just coaled pushed off a plank over which they had carried the coal to the tender. Neither of these men had any control of or connection with the actual movement of engine or cars. Engine and cars were in fact at a standstill when the accident happened, but this court said that, as it was necessary to remove the plank preparatory to starting the engine, the negligence with which it was done was connected with the úse and operation of the railway within the meaning of the statute. If the act of a coal shoveler in removing a gang plank in order to insure safe movement of an engine is labor connected with the operation of a railway, how shall we say that the work of a gravel shoveler engaged in preparing a safe track in front of the same engine is not within the contemplation of the same statute? Are we not thus involving ourselves in an overrefinement of distinction destructive of the benefit which the Legislature sought by this enactment to secure to a large class of men exposed to peculiar and great hazards in a quasi public service?
I am aware that in a later case, Reddington v. Railroad Co., 108 Iowa, 96, we appear to have held that, while it is labor connected with the operation of a railroad to push
Our statute was the subject of consideration by the Supreme Court of Minnesota in Njus v. Railroad Co., 47 Minn. 92 (49 N. W. 527), which was an action brought in that state for an injury sustained by the plaintiff in Iowa. The plaintiff was a section hand 'engaged with others in urn loading iron bars from flat cars along the railway track. At one point when the train was at rest and the men were engaged in throwing off the bars, plaintiff was injured in consequence of the negligent manner in which one of his fellow laborers let a bar drop. The court quoting our statute as authority for such action, and reviewing our cases, including most of those cited in the present majority opinion, say “ From our examination of the Iowa decisions, we are satisfied that, were the case before the Supreme Court of that state, it would sustain plaintiff’s action.” We may add that the Minnesota court also confesses its inability to distinguish some of our cases which uphold a recovery from some others where recovery has been denied — a feeling of uncertainty which future generations of lawyers will no doubt share with that distinguished tribunal. That state has also a statute which is in substance identical with our own and its courts agree with this court in construing it as applicable only to employes whose labor in some manner
Applying this rule in Blomquist v. Railroad Co., 65 Minn. 69 (67 N. W. 804), a precedent cited approvingly by us in the Akeson Case, it was held that sectionmen engaged in repairing a track in front of a moving train were within the protection of the statute and that for an injury occasioned to one of them by the negligence of a fellow section hand ’ in dropping a rail when in haste to clear the track for the passage of a train the company was liable. Under these circumstances the court says that “ the plaintiff’s employment involved an element of hazard or condition of danger peculiar to railroad business and intimately connected with and growing out of the operation of the road.” Speaking of this same statute, though upon another phase of its application, the same court has well said: “ The statute is a pqlice regulation intended to protect life, person, and property by securing a more careful selection of servants and a more rigid enforcement of their duties by railroad companies, by making - them pecuniarily responsible to those of their servants who are injured by the negligence of incompetent or careless fellow servants. It is remedial in its nature and must be construed, if not liberally, certainly • in accordance with its obvious purpose and spirit.” Mikkelson v. Truesdale, 63 Minn. 137 (65 N. W. 260). See, also, Ditberner v. Railroad Co., 47 Wis. 138 (2 N. W. 69).
Is there any room to doúbt the purpose and spirit of our statute? Is it not intended to protect the life and limb of the railway employé exposed to the hazards of railway use and operation by making the corporation liable to him whenever those hazards peculiarly or naturally incident to such use and operation have been increased to his injury by the negligence of a co-employé? Under the rule prevailing" in this state trainmen and track hands are co-employes and in the absence of statute neither could recover
But let us suppose that in the case before us the crowbar negligently left by the sectionman on the track, instead of being struck and driven through the air, had gone under the wheels, derailing the engine, to the injury of the engineer or fireman. Would it be contended for a moment that for such an injury there is no liability under the statute? And yet we could not uphold a recovery of damages in such case without repudiating the principle upon which the majority opinion is based. Is not the danger of derailment one of the peculiar hazards of train operation? Conceding it to be such, is not the carelessness of any employe which brings about such an accident negligence “ connected with the operation ” of a railway ? Again, is not the danger of being struck by a moving train, or by missiles hurled from the track by the impact of a swiftly moving pilot or wheels, one of the peculiar hazards of railway operation to which the laborer on or along the track is exposed? See Doyle v. Railroad, 77 Iowa, 607; Reilly v. Railroad, 122 Iowa, 525. If this be so (and under the concession of the majority it cannot well be questioned) then is not the carelessness which brings about' such a casualty negligence “ in connection with the operation ” of the road ? As the accident is one which occurred in and is peculiar to railway operations it follows as a logical necessity that the negligence which caused it has some connection with such operations and such is the class of accidents or injuries contemplated by the statute.
To emphasize my proposition that the Legislature did not intend the statute in the narrow and restricted sense which this decision gives to it I again call attention to the parts of the section which I have italicized. It provides for recovery of damages on account of the negligence and willful wrongs of agents, engineers, and " other employes ”
Neither am I able to agree with the proposition that the trial court was “ clearly right ” in ruling out the statement made by the deceased immediately after his injury as to the manner in which he had been hurt. In my judgment the statement was unquestionably admissible under the rule adopted by this court in Keyes v. Cedar Falls, 107 Iowa, 509; Alsever v. Railroad Co., 115 Iowa, 338; Fish v. Railroad Co., 96 Iowa, 702; Durkee v. Railroad Co., 69 Cal. 533 (11 Pac. 130, 58 Am. Rep. 562); Railroad Co. v. Elliott, 54 Neb. 299 (74 N. W. 627); State v. Jones, 64 Iowa, 349; State v. Driscoll, 72 Iowa, 583; McMurrin v. Rigby, 80 Iowa, 322; Keyser v. Railroad Co., 66 Mich. 390 (33 N. W. 867). See, also, Hermes v. Railroad Co., 80 Wis. 590 (50 N. W. 584, 27 Am. St. Rep. 69) ; Hooker v. Railroad Co., 76 Wis. 542 (44 N. W. 1085); State v. Molisse, 38 La Ann. 381 (58 Am. Rep. 181); Commonwealth v. McPike, 3 Cuch. (Mass.) 181 (50 Am. Dec. 727) ; Railroad Co. v. Foley, 94 Ky. 220 (21 S. W. 866) ; Railroad Co. v. Buck, 116 Ind. 566 (19 N. E. 453, 2 L. R. A. 520, 9 Am. St. Rep. 883) ; Railroad Co. v. Leverett, 48 Ark. 333 (3 S. W. 50, 3 Am. St. Rep. 230). And decidedly in point is Peirce v. Van Dusen, 78 Fed. 693 (24 C. C. A. 280, 69 L. R. A. 717).
For the reasons stated I think the judgment appealed, from should be reversed.