127 Iowa 84 | Iowa | 1905
Tbe plaintiff was a section band employed at Wlota. On tbe morning in question be and nine others, including tbe foreman, boarded a band car, on which the tools ordinarily used by tbe men, together with their dinner pails, a water cask and some plank, bad been placed. They were going to work some five miles east of town. Tbe plank bad been placed on tbe north side of tbe car, and on
The plaintiff testified that he did not know how far he sprang back, but that he struck the ground on both feet, facing the car, and that he staggered back eight or ten feet before it struck him. In his words: “It either rolled me along or shoved me along on the ties under the car. I remember being dragged along on the ties under the car. I could not tell how far. Probably the length of a rail — thirty feet. One wheel of the car ran over my head and broke my jaw.- The cogwheel caught me and turned me around under the car.” Other witnesses estimated that the car, after striking him, went from twelve to twenty feet. The speed, of the car was variously estimated at from two and one-half to six miles an hour. The distance within which a car loaded as this was, with brakes in good repair, and under like conditions, could be stopped by a man of the weight of the foreman, was estimated by two witnesses at two to four feet, when going from two and one-half to three miles per hour, and at four to six feet when moving at six miles an hour, while another fixed the space at twelve
The promise to repair' only has the effect of relieving him from his implied assumption of the risk for such length of time as would be reasonably sufficient in which to make the repairs or remedy the^defeet, and in which he might reasonably expect the same to be done. If the injury occurs within that period, the injured servant may recover, because he is relieved during that period from his agreement, implied by law from his knowledge, that he will serve on at his own risk. This is afforded to him because he may during that time reasonably expect the repairs to be made or the defect remedied. Where, however, the agreement to repair or remedy the defect is, as in this case, not to be begun until after the job on which the servant is then at work, the agreement is not operative until that time arrives, because, during the time which inteawenes between the making of the promise and the time when the promise is to be performed, the servant has no reason to expect the repairs to be made or the defect remedied. And hence during that time there is nothing to relieve him of his agreement implied by law from his continuation in the service with knowledge of the augmented risk caused by the defect, any more than during the time prior to making the promise to repair.
It follows from what we have said that, upon the charge of negligence in failing to keep the brakes in repair, the cause should have gone to the jury. — Reversed.