Schroeder v. C. R. I. & P. R., 41 Iowa 344

Schroeder v. C. R. I. & P. R.

41 Iowa 344 | Iowa | 1875

Beck, J. —

i, eailkoáds: pioyes.stoem I. Under the statutes of this state railroad corporations are liable to their employes for damage resulting from the negligent or willful acts of other employes. Code, § 1307. But this change of the rule of the common law extends no farther than to employe^ engaged in the business of operating railroads and not to all. persons employed by the corporation without regard to their employment. The services of the persons claiming compensation under this provision must be connected with the use and operation of the railroads. Corporations owning and' operating railways may engage in other business which may be within the scope of the objects of their organization, yet not at all, or very remotely, connected with the use of their roads. In such cases employes by whom such affairs are conducted acquire no rights under this statute. Their occupation does not expose them to the hazards incident to the use of railways. The statute was not designed for their protection and benefit. Deppe v. C. R. I. & P. R. Co., 36 Iowa, 52; McAunich, v. M. & M. R. Co., 20 Iowa, 338. The count of the answer held bad on demurrer sets up that plaintiff’s em-' ployment was in no way connected with the operating of defendant’s road. The removal of an abandoned bridge certainly has ordinarily no connection with running railway trains or the use of a railroad. It may be conceded that under certain conditions it might have. But the count held bad directly avers and shows that in this case it had not. If the facts alleged had been established by evidence, plaintiff could not have recovered. The demurrer, therefore, was erroneously sustained.

2 peactice feriofs court" demurrer. . II. It is insisted “that defendant had the benefit of this plea upon the trial under other issues raised in the pleading.” The issues tendered by the plea are certainly not presented by other pleadings. It is difficult to see pow the specific defense presented in the count *348could have been made after the court held, uj>on demurrer, that the facts alleged presented no defense to the action. We would be compelled to presume that the court, disregarding its rulings, permitted evidence to be introduced upon matters not in issue and held by the decision upon the demurrer to present no defense to plaintiff’s claim for damages. We must presume that the court’s rulings upon the trial were consistent with its decision upo.n the demurrer, and that the evidence upon which defendant expected to support the plea was not introduced.

3.bailb¿ads: issue of fact. III. It is true that upon the trial the question of law involved in the ruling upon the demurrer seems to have been before the court. In the fourth instruction the coulq ruled that under the statute above cited defendant was liable in this case. If this ruling is correct, it was made upon the evidence before the court. We cannot presume, as we have just said, that any -evidence was given to the court upon the count held bad. The plaintiff’s position that defendant had the benefit of his plea cannot be presumed. But the instruction is erroneous in that, as a matter of law, it decides the nature of plaintiff’s services and. employment brought him within the statute. The character of his employment, whether it was in connection with the use of defendant’s railroad, and whether thereby he was.brought within the provision of the statute,'were questions of fact to be determined by the jury and not questions of law for the decision of the court.

IY. The question appears to have arisen in the case whether plaintiff was engaged in the duties of his employment when he was injured, and certain instructions were given thereon. But it will be readily seen that this question-is not the one raised by the plea held bad. The issue tendered therein is that plaintiff’s employment was not connected with the use or operation of the railroad. The issue involved in the instructions was'whether defendant’s duty required him to ride upon the cars when he was injured. .The distinction between these issues is obvious and it will be readily seen they are not the same.

*349Many other questions are presented which need not be considered, as the cause must be reversed for the errors above pointed out. Upon a re-trial of the case under the pleadings as they will be when settled to accord with this opinion, it is not probable the same questions will'arise that are now urged upon our attention. It is not necessary, therefore, to discuss them at this time.

Reversed.