83 Iowa 485 | Iowa | 1891
The plaintiff was a bridge builder and employe of the defendant company. In August, 1887, he was engaged in his capacity as bridge builder, on and about a pile driver used by the defendant company in the construction and repair of railway bridges. The pile driver for use was placed on a flat car, and by that means moved as the necessities for its use required. The pile driver was operated by a stationary engine on the same ear. The plaintiff’s duties were “to work upon the bridges; assist in putting on and taking off such timbers as were used on the cars, as they were being hauled from place to place on the car; and to work on and about the car when in motion, and when standing still; to assist in attending to the pile driver and the brake on the car, which had to be tightened and loosened as the car was moved or stopped.” About the twenty-eighth day of August, 1887, the car and pile driver were being used in the repair of a bridge on the defendant’s road, and the ear with the pile driver having been placed in proper position on the track by a locomotive engine, the pile driver and stationary engine were used to raise, from a truss bridge which was being moved, a heavy timber known
The jury returned fourteen special findings, among which are the following, as to the negligent acts of Elgenfritz: “Ninth. Do you find that Elgenfritz gave an order, by motion and gesture, to plaintiff, to pass over from the west side of the car to the east side, and to push the end of the chord resting on the car off onto the ground? A. Tes.
‘ ‘ Tenth. Do you find that Elgenfritz gave an order intentionally to plaintiff, by motions and gestures, to pass over from the west side of the car to the east side, and to push the end of the chord resting on the car off on the ground? A. Tes.
“Eleventh. Do you find that Elgenfritz intentionally gave to the plaintiff an order, by motion and gesture, to go from the west side of the car to the east side, and push the end of the chord resting on the car off onto the ground, by standing or stepping in front of the end of the stick or chord? A. Tes.”
It is urged that these findings and the verdict have no support in the evidence, and we think the position is correctly taken. The following from the plaintiff is the testimony, as quoted by appellee, for their support: “Mr. Elgenfritz stood between me and those men [the men who held the hand-line], and, the engine being exhaust, used to work by signs; and he motioned me to go across there [here witness illustrates with a forward movement with his hands] ; and I stood right here at the end of the car. I went over and took hold of the stick of timber, caught hold of it, and then there was a slack, and shoved me right against there.” “When Elgenfritz made this signal to me, he stood between the men and the car on the track. There was nothing to prevent his seeing me. When I was standing there, on the west side of the leads, Elgenfritz had just turned around, and .made a motion at me, and shook his head
Nothing that we find in the evidence adds to the foregoing to show that the foreman ordered the plaintiff to the place where he was injured. Although the plaintiff says that he was by the motions ordered to go where he did to shove off the chord, it is- manifest from his statements that he only supposed the foreman so intended. He also says, in terms, that he did not know what the foreman motioned at him for. The most that can be said, from the evidence, is that the foreman made motions that he did not understand; and, upon his judgment of what was meant, he went to the place where he was injured. The findings of such fact cannot warrant the conclusion of negligence against the company in ordering him to the place where he was injured. Under the allegations, he must have been ordered to the place; not motions made, from which
It is urged that it was negligence for Elgenfritz to order the men with the hand-line to pull the chord loose from the leads while the plaintiff was at the north end of it, even though he did not order him there. But evidence is equally wanting to support a conclusion that Elgenfritz knew that the plaintiff was there. His (Elgenfritz) testimony is, that he did not know that he was there when such order was given, and there is no testimony to show that he did. The plaintiff testifies that Elgenfritz motioned to him while he was on the west side of the car; but, as we hold, there is no evidence from which it could be found that he ordered him to the place of injury. It cannot be said from the fact of the motions being made, that he was seen by Elgenfritz at that place. No additional evidence is. cited by the appellee to sustain this point, and we discover none.
It is, however, urged that it was Elgenfritz’s “business to know” if any person was in the way of the moving timber, and counsel cites the rule as to persons, shoveling ice and snow from the top of a building to a sidewalk. We think that, before the case can be likened to that of shoveling ice or snow upon a side
We discover no other question that, in view of the further disposition of the case, demands our consideration, and the judgment is reversed.