184 Iowa 1363 | Iowa | 1918
I. This action is under the Federal Employers’ Liability Act, and is brought to recover damages claimed to hav$ been sustained through the negligence of the defendant, while engaged in interstate commerce. The action is against the Chicago, Rock Island & Pacific Railway Company and its receivers.
The company.answers, and denies generally and specifically every statement, allegation, matter, and thing alleged which, if true, might involve the defendant in liability, and alleges especially that it was not engaged in the operation of, nor did it have possession of, the railway property mentioned in the petition, at the time referred to; that the railway was solely and exclusively in the possession of and operated by the receivers mentioned, under appointment by the Federal court.
That the plaintiff received injury while in the employ of the defendants is not a controverted question here, nor is the extent of his injuries, for the reason that, at the conclusion of plaintiff’s testimony, the court directed a verdict in favor of both defendants, and upon such verdict, entered judgment, dismissing plaintiff’s petition.
The case, therefore, as presented here, involves but two questions:
(1)Was the plaintiff, at the time he received his injuries, engaged in interstate commerce, so as to be within the rule of the Federal Employers’ Liability Act?
(2) Was the injury exclusively due to the act of the plaintiff himself, — that is, due to his own exclusive negligence; or was it due to some negligent act of the defendants, or either of them, which contributed to the injury, for which they, or some of them, ought to be called upon to respond in damages under the Federal Employers’ Liability Act?
Under all the decisions, both plaintiff and defendants were engaged in interstate commerce. The Federal Employers’ Liability Act, as bearing upon this case, provides (Federal Employers’ Liability Act of April 22, 1908, Chapter 149, Section 1, 35 U. S. Statutes at Large 65, U. S. Comp. Statutes, 1916, Section 8657) :
“That every common carrier by railroad while engaging in commerce between any of the several states or territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of its officers, agents or employees.”
This first point was directly decided by this court in plaintiff’s favor in Eley v. Chicago G. W. R. Co., decided May 21, 1919; Ross v. Sheldon, 176 Iowa 618; and Brier v. Chicago, R. I. & P. R. Co., 183 Iowa 1212.
In Deal v. Coal & Coke R. Co., 215 Fed. 285, the plaintiff was engaged in repairing telegraph lines owned by the railway company, and used in directing the movement of its trains. It was held that the injured party was engaged in interstate commerce, and his rights were governed by the Federal Employers’ Liability Act.
It has been said that the true test as to whether the employment is within the Federal Employers’ Liability Act is, Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it? Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556 (60 L. Ed. 436).
So we say that the plaintiff showed a right of action under the Federal Employers’ Liability Act, and the court erred in dismissing his petition on that ground.
Upon this question, the record is not as clear as it might be; but we gather from the record this state of' facts: He was injured on the 27th day of August, 1915. On this day, he was employed as a common laborer, to wo Hi with a construction gang in the repair and maintenancé of
“I had my lining bar in the bolt hole, trying to help the man at the other end to get his end loose. I had my end free. It was loose. I supposed he would let me know when he got his bar down in where he could get hold, and I was there, waiting for him to get in, and was still holding, to help get his bar fastened. When he got his bar in, he said nothing. He gave his bar a big, heavy wrench, and knocked me headfirst off the car. I was doing my work, at the time I was hurt, in the usual and ordinary way of doing that work.”
It is apparent that plaintiff was injured while in the line of his employment, and while engaged in the very act which he was directed by defendants’ foreman to do. Taking this record as it is before us, the jury might well find that the plaintiff had done the work assigned him in the usual and ordinary way. He had succeeded in loosening his end of the rail, and, while standing with his bar in the bolt hole, awaiting the action of his co-employee at the other end of the rail, the rail was suddenly turned, witlr plaintiff’s bar in the bolt hole, and the position of the bar changed, by the act of turning. This threw it out of position, and injury resulted to the plaintiff. Plaintiff was waiting for the employee at the other end to signal him that he had secured a bar hold on the rail, sufficiently strong to enable him to turn the rail free from its position and loosen it from the pile. The record shows that his co-employee, without giving the warning which the plaintiff had reason to expect, and which the employee was directed to give, and upon which plaintiff relied, suddenly jerked the rail loose, causing plaintiff’s bar to strike him upon the head.
The jury could well have found that the cause of the injury was the sudden and unexpected movement of plaintiff’s assistant, in suddenly jerking the rail loose without
It was said by this court, in Byram v. Illinois Cent. R. Co., 172 Iowa 631:
“It is clear that the plaintiff did not assume the risk arising out of the negligence of-another employee; for this he could not anticipate or guard against.”
The defendants pleaded contributory negligence. This cannot avail them at this time, for it is not a defense under the Federal Employers’ Liability Act. In any event, it can only serve to diminish the damages, if any, allowed to the plaintiff.
On both grounds, we think the court erred in directing a verdict for the defendants, and for that reason the case is — Reverseé.