64 Iowa 644 | Iowa | 1884
On the morning of. the ninth of June, 1882, plaintiff assisted in making certain repairs on a car standing on the hospital or repair track, in the yards of the defendant at JDes Moines, and from there proceeded, to repair another car upon the same track. Plaintiff and his co-laborers raised one end of the body of the car from the track with jack-screws, and plaintiff and-another man then went under the car at the raised end to make the required repairs, and while there the car moved forward and tilted the jack-screws, and one of the wheels ran on to the plaintiff’s foot and crushed it, so that amputation became necessary. It is alleged that the wheels of the car had not been blocked, and that at the time of the injury an employe was using a bar or lever upon the part of the truck where the plaintiff was repairing. It is claimed by plaintiff that the prying with the lever at the place where it was done was unusual, and that the movement of the car was caused thereby, and that he would not have been injured if the car had been blocked. It also appears that the track upon which the car stood was upon quite a considerable grade.
The main question in the case, as we understand it, is whether the plaintiff was engaged in the service of the defendant in such capacity that he is entitled to recover damages for an injury by reason of the negligence of a co-employe. To determine this question it is necessary to ascertain from the testimony the nature and scope of the plaintiff’s duties as an employe of the defendant. The plaintiff testified upon this point substantially as follows:
The headquarters of the force of car-repairers to which
While going on the trains east or west as car-repairer, if there was a hot box broken in the train, plaintiff was required to assist in repairing it, and, if at a station where a defective car was set out, he was required to assist in its repair.
The question to be determined is whether, under section 1307 of the Code, which is the law now in force in reference to the liability of railroad companies for injuries resulting to an employe by reason of the negligence of a fellow-servant, there can be any recovery under the facts in this case.
There was no liability at common law. Sullivan v. M. & M. R'y Co., 11 Iowa, 421. By section 7, chapter 169, of the Laws of 1862, it was enacted that “every railroad company shall be liable for all damages sustained by any person in consequence of any neglect of the agents, or by any mismanagement of the engineer or other employe of the corporation, to any person sustaining such damage.” This act was held to be constitutional in the cases of McAunich v. The M. & M. R’y Co., 20 Iowa, 338, and Ney v. D. & S. C. R’y Co., Id., 347. It was held in those cases that the law was not repugnant to article 3, section 30 of the constitution, which requires that “all laws shall be general and of uniform oper
■ Under these facts it was held that the plaintiff’s duties were such as to authorize a recovery under the statute. The court said: “ The manifest purpose of the statute was to give its benefits to employes engaged in the hazardous business of operating railroads. When thus limited, it is constitutional; when extended further, it becomes unconstitutional.”
This further language is employed in the ojiinion in that case: “We have thus stated our views at some length, to avoid misconstruction, for we hold that the court held correctly in refusing the instruction asked, and this because the employment of the plaintiff was connected with the operation of a railway train. It is true, he was not injured while, or by, operating the train, but neither the act itself nor the constitutional limitation requires us to put this very narrow construction upon it. The plaintiff was employed' for the discharge of a duty which exposed him to the perils and hazards of railroads; and, although the injuries didnot arise from such hazards, they cannot be separated from the employment. If the plaintiff had been employed exclusively for shovel
In April, 1872, the legislature passed another act fixing the liability of railroad companies, which is as follows:
“ Section 1. That every corporation and person owning or operating a railroad in this state shall be liable for all damages sustained by any person in consequence of the willful wrongs, whether of commission or omission, of their agents and employes, when such willful wrongs are in any manner connected with the use and operation of any railroad so owned or operated, on or about which they shall be employed.” Chapter 65, Laws of Fourteenth General Assembly.
The present Code was adopted in 1873, and section 1307 is as follows:
“ Every corporation operating a railroad shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employes of the corporation, 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, and no contract which restricts such liability shall be legal or binding.”
It will be seen that the two acts of 1862 and 1872 were consolidated into one. Counsel for appellant claim that the union of these two separate and independent acts of 1862 and 1872 did not modify the act of 1862 in any respect, but that the liaibility remains the same as before for acts of mere negligence, and that the words, '-‘■when such wrongs are in any manner connected with the use and operation of any rail
With the exception of Deppe’s case, all- the actions in which this court has determined that railroad companies are liable in this class of cases are those where the injury was received by the movement of ears or engines upon the track. See Frandsen v. R’y Co., 36 Iowa, 372; Schroeder v. R’y Co., 47 Id., 375; McAunich v. R’y Co., 20 Id., 338; McKnight v. R’y Co., 43 Id., 406; Potter v. R’y Co., 46 Id., 399 ; Smith v. R’y Co., 59 Id., 73 ; Malone v. R’y Co., 61 Id., 326, and other cases.
We think, however, that the rule in Deppe’s case is not materially different from the rule as now fixed by statute. This court has not recognized any distinction in determining cases of this character. See Malone v. R’y Co., and Smith v. Railway Co., above cited. In that case the rule is recognized as the same, and Deppe’s case was discussed as though the rights of the parties were the same. In that case it is said: “ Deppe was a train-man; he was part of a gang who worked with a train, and part of his duties were peculiar
Applying this test to the evidence in the case at bar, we think the plaintiff does not come within any rule which has been adopted by this court. It is true, he was at times required to take passage upon the caboose of a freight train, or in the coach of a passenger train, to ride to his work, but he was not required to engage in his employment at points where there were moving trains. It was held in Deppe’s case that, “ if the plaintiff had been employed exclusively in shoveling or loading the dirt, he could not recover, although he might have ridden to and from his work on th,e cars.” That is about as near as plaintiff in this case brings himself, by his evidence, to the perils attending the operation of the road. Riding to and from his work when required to go to points away from Des Moines is about all the danger to 'which he was exposed from the operation of the road. He was not a train-man, and had nothing to do with the running of trains. Deppe was connected with the train upon which he worked, not as a brakeman, fireman, engineer or conductor, but as one of the forcé necessary to make up the crew of a construction train.
It is shown in the evidence that the track was constructed upon a grade of about, sixty-three feet to the mile. But there is not one word of testimony as to whether the grade was unusual, or whether the surface of the earth was such as to admit of different construction. Indeed, it is not shown that the grade of the track was the proximate cause of the injury. If there was any negligence in this respect, it consisted in a failure to block the wheels of the car. It appears that blocks were used for this purpose while repairing the other car on the same track.
Affirmed.