118 Iowa 148 | Iowa | 1902
The freight train, composed of thirteen loaded cars, twenty-six empties, and the caboose, was made np at Rock Island, from which place it departed at five o’clock in the morning. When it reached Perry street, in Davenport, a second .engine or “helper” was attached, and together the two pulled the train west to Farnam, where the absence of the head brakeman. was first discovered. ' Evidently he had fallen from the top of the train about fifteen or twenty feet west of Fillmore street, in Davenport. The circumstances warranting this inference are. (1) A dint in the snow between the tracks at that place, as though a person had fallen some distance on the hip; (2) his lantern just outside of the track; (3) parts of his body and blood stains from that point to the place where the head and trunk were found. It may also be inferred that he fell between the third and fourth cars from the engine, for blood stains were found on tlie front trucks of the fourth car, and from there on back. The running board of the third car was about a foot wide, while that on the fourth car was a foot higher, and consisted of three strips about an inch apart, and projecting over at the end five or six inches. The tops were frosty, but upon examination no indications that he had slipped were discovered. The wind was blowing from the northwest, the direction the train moved, at a velocity of five miles an hour. The temperature was 11^-degrees above zero; the humidity of the atmosphere, 90 per cent. Fillmore street is one block west of the semaphore, two blocks west of ■Marquette street. Between these streets are five switches, —one at the semaphore, connecting with defendant’s branch line to the southwest, and the others with tracks to local industries. From Perry street to Fillmore the road was slightly undulating, but from Fillmore street to Farnam, a block less than 2.7 miles away, the up grade was 47-| feet to the mile. Opinions as to the speed of the train
Says Mr. Dresser, in his valuable work on Employers’ Liability (section 82): “The contract of hiring depends upon the same principles as other contracts, yet it has one peculiarity, in that it creates a status or relationship between the parties, to which the policy of the law has affixed certain rights, duties, and disabilities to be observed by each, irrespective of any understanding or supposed agreement between them. These duties and disabilities arise when the relation is created, and Continue until it ends,
Some stress is laid on the impolicy of allowing persons to waive obedience of an ordinance or statute. It would seem quite as inimical to the public good to permit a workman to take advantage of the master’s failure to obey the law to which he has consented, as to permit the master to avoid liability because the servant connived with him in such disobedience, by agreeing to work with the conditions as they existed, and according to the method mutually adopted. In other words, it is quite as obnoxious to public policy, independent of the penalty imposed, for the employe to aid and encourage the employer in his disregard of an ordinance, as for the employer to violate it. Our study of the subject has led to the conclusion that, in the matter of assumption of risks, it is immaterial whether they arise from the violation of a common-law duty, or an obligation imposed by statute. As directly in point, see Knisley v. Pratt, 148 N. Y. 372 (42 N. E. Rep. 986, 32 L. R. A. 367); Carpet Co. v. O'Keefe, 25 C. C. A. 220 (79 Fed. Rep. 900); Keenan v. Illuminating Co., 159 Mass. 379 (34 N. E. Rep. 366); Dresser, Employers’ Liability, section 116. Also see 13 Law Mag. & Rev. 19; 3 Elliot, Railroad, section 1345; Electric Co. v. Allen, Ala. (13 South. Rep. 8, 20 L. R. A. 457); Ford v. Railway Co., 106 Iowa, 85. In the first of the above cases, the court, speaking through Bartlett, J. in referring to the claim that public policy required the rigid enforcement of a particular statute, and that this would be contravened by permitting an employe by contract to waive its protection, said: “We think this proposition essentially unsound, and proceeds upon theories that cannot be maintained. It is difficult to perceive any difference in the quality and character of a cause of action, whether it has its origin in the ancient' principles of the common law, in the formulated rules of modern decisions, or
The ruling of the district court is approved, and its judgment aeeirmed.