149 Iowa 440 | Iowa | 1910
The plaintiff alleges in substance that he was engaged in the service of the defendant as locomotive fireman and engineer; that during the 2d and 3d days of August, 1906, in obedience to the orders and directions of his employer, lie was kept in continuous active labor in said service for more than twenty-four hours without sleep or rest, whereby he had become so greatly exhausted that he was unable to appreciate the dangers arising from continuing’ in his said work while in such condition, and that while thus weakened and exhausted he was negligently ordered by his superior to make still another trip over the road, and that in attempting to obey such order he became unconscious and fell from his engine, sustaining the injury of which he complains. To this claim the defendant pleads a general denial, and alleges that plaintiff had assumed the risk, if any, arising from his obedience to his superior’s orders.
From the testimony offered on the part of plaintiff, the jury would have been justified in finding that for a considerable period prior to plaintiff’s injury he had been in the employ of the defendant, originally as a section
At the close of plaintiff’s testimony, defendant moved for a directed verdict in its favor, stating eleven grounds for the requested ruling. These may be grouped in general terms as follows: (1) There is no evidence on which to
In Smith v. Railroad Co., 39 Tex. Civ. App. 468 (87 S. W. 1052), the court appears to have reached a con
Some other decisions are cited as involving principles applicable to the question before us. Republic Iron Co. v. Ohler, 161 Ind. 393 (68 N. E. 901), decided by the Supreme Court of Indiana, holds that the fatigue of the servant from forty-eight hours’ continuous labor was a competent circumstance for consideration upon the question whether he appreciated the peril or assumed the risk of the master’s alleged negligence in not providing a safe place to work. The same court has held that a master, who in violation of statute requires a youth under sixteen years of age to work more than sixty hours per week, is negligent, and when the employee thus overworked falls
But this rule, in the absence of a governing statute, is subject to the. general limitation that the order of the master or vice principal can not be relied upon to sustain an action, where the hazard is so clearly imminent or certain that a reasonably prudent servant would refuse obedience. So, too, if the danger to he apprehended in obeying the order is better known to the servant than to the master giving the order, or if the servant fully appreciates the nature and extent of the risk to which he is exposed, he is held to have assumed the risk. Westcott v. Railroad Co., 153 Mass. 460 (27 N. E. 10); Gorman v. Brick Co., 99 Iowa, 257; 1 Labatt, Master & Servant, section 443.
But the manner in which such negligence affects the plaintiff is somewhat peculiar. The peril to which he was thereby exposed resulted largely from subjective conditions, which were necessarily clearer and more apparent to his own consciousness than they could be to the foreman or superintendent under whose order or direction he acted. Indeed, the evidence tends to show that the foreman realized that plaintiff had been subjected to hard service, and was doubtless considerably worn; for he seems to have addressed him by way of request and argument, rather than by command or peremptory order. He told the plaintiff that there were no engineers or firemen available for this particular train, and said he wanted plaintiff to fire the train to Missouri Yalley. Plaintiff did not refuse, nor does he appear to have asked to be excused from the service. The nearest he came to such an expression was to say that he “felt bum,” and felt “more like laying off than to make the run.” As a witness he says he “felt all right, except being tired and sleepy.” The foreman encouraged him by saying that the run was a short one, and that on his return he would have steady work as an engineer, and with the response, “If I have to go, I guess I can,” he consented to the service. The conversation was of a good-natured and friendly character, and at no time was there any suggestion that plaintiff would be discharged, or visited with other evidence of the company’s displeasure, if he should say that his condition was such that he must decline to undertake the work. If his physical exhaustion had reached that degree which rendered it doubtful whether he could do an additional two or three hours’ labor as fireman, and he was not himself conscious of the fact, there is nothing in the record to indicate that such condition was
What effect the present statute may have upon the rule of assumed risk as applied to cases of this kind we have no occasion to consider. In many of its applications the rule of assumption of risk of perils created by or arising from an employer’s negligence is a harsh one, which as an original proposition can not well be harmonized with an enlightened sense of justice; but, until modified or abolished by statute, the courts are bound to observe it as a fixed principle of the law of master and servant. It may farther be said that in the case before us we have an illustration of the operation of the rule in its least objectionable aspect, in that plaintiff, knowing the conditions, of which he now complains, better than it was possible for the defendant to know them, and apparently with full appreciation of his alleged physical unfitness for the task, voluntarily undertook its performance.
Appellee also argues that there is no sufficient showing that the alleged negligent order was the proximate cause of plaintiff’s injury, and that in any event he has not shown himself free from contributory negligence. We incline to the view that, were the case otherwise sustainable, these were legitimate questions for the jury to determine.
For the reasons stated, the judgment of the district court is affirmed.