149 Iowa 735 | Iowa | 1910
Lead Opinion
A crew, consisting of two machinists and five helpers, was employed by defendant in stripping engines when brought into its machine shops for repair, and in replacing the parts when put in a state of repair. The plaintiff was one of the helpers, and his duty was to block the wheels of the engine when placed over the draw pit in the shop by putting wooden blocks or iron nuts or burrs under the wheel and removing these when the engine was ready to be taken away. This pit was in the shop with movable rails over it, these being connected with others extending to the turntable on the outside and then on with the main tracks of the railroad. When the wheels were to be put on an engine, it was “jacked up and rested on supports, the rails of the pit were then removed, and the wheels put in place. Then, for the purpose of putting in the second set of drivers, the track would be replaced and the engine would be removed so that the drivers which had been attached would rest on the permanent track beyond the pit, when the same plan would be followed for putting on the drivers, which has been described. . . . The engine, after the drive wheels were under it, was removed by another engine, but sometimes by pinch bars.” On July 13, 1907, a switch engine was employed to remove that on which the wheels had been replaced. The repairs had not been completed, and, for this reason, two of the helpers sat on the frame holding up part of the machinery so it could move. After helping couple the live with the dead engine, plaintiff stepped back to see if the blocking
As plaintiff’s employment was such as ,to expose him to the dangers incident to the moving of the dead engine, and the negligence of the engineer, if any, was in starting the same without warning, it is evident that the determination of the question depends on whether the work being done was in any manner connected with the use and operation of the railroad. The section of the statute referred to, in so far as pertinent to the inquiry, reads: “Every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of the agents or by any mismanagement of the engineers or other employees thereof, and in consequence of the willful wrongs, whether of commission or omission of such agents, engineers, or other employees when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed.”
In a sense, everything such a corporation does is in some manner connected with the use and operation of its railway, for that is the purpose of its existence. Thus the work of those who solicit freight or passengers for transportation or enter into traffic arrangements with other roads, or procure rolling stock or fuel for the engines and the like, is connected with the successful operation of the
But we have discovered no decision - to the effect that a railroad is operated save when in use for the transportation of freight of some kind or passengers or both. Such is the use of all railways, and, when not so employed, they are not in use. It is the use the rails are put to and not the form of rails which determines whether they constitute a railway. The mere moving of the dismantled engine which had been withdrawn from service and sent to the hospital for remedy by the live engine was neither connected with the use nor the operation of' the railway, but was in the preparation for use in that connection. The work of these shops may as well have been carried
We are of opinion that the rails on the shop floor did not constitute a railway within the meaning of the statute, nor was the movement of the dismantled engine on the rails therein by the live engine the use and operation of a railway. See Perry v. Ry., 164 Mass. 296 (41 N. E. 289); Potter v. Ry., 46 Iowa, 399; Hathaway v. Ry., 92 Iowa, 337.
The ruling of the district court is approved, and its judgment is affirmed.
Dissenting Opinion
(dissenting). — In my judgment the majority'' opinion draws a distinction which can not be logically maintained, and reaches a result not to be reconciled with our own holdings in numerous cases. It concedes the sufficiency of the showing to sustain the charge of negligence and the want of contributory negligence, and disposes of the appeal on the sole ground that said negligence was
For instance, we have held that the work of an employee charged with the repair of a bridge (Locke v. R. R. Co., 46 Iowa, 113) ; of a coal shoveler in loading a standing engine (Akeson v. R. R. Co., 106 Iowa, 54); of an employee controlling the operation of a ditching
Even in this case the majority opinion seems to concede that if the engine had been undergoing repairs in a roundhouse instead of the company’s shop a different rule might apply. In short, it may be stated as the recognized general rule that wherever the employee may be and whatever may be the nature of his work if he is thereby exposed to the hazards peculiar to or attendant upon the operation of a railway he is within the protection of the statute. Bearing this definition in mind the fallacy pervading the majority opinion is clearly apparent. It crops out noticeably in the suggestion that a literal interpretation • of the statute might be made to cover the case of an agent or employee who solicits freight or passengers for his road. Such service has no more connection with the operation of a railroad than has the service of the job printer who supplies its advertising matter. "What is meant by the words “in any manner connected with the operation
We have held that the act of pulling a cable which
The operation of the statute here in question is not limited to railroad corporations or to railroads doing business as common carriers. In any event, if a railroad corporation sees fit not to send its cars and engines to an independent shop, but builds its own in connection with and as a part of its own system, and extends its tracks into and through the shop buildings, and over these tracks operates its locomotives, it strikes me as being a very strained interpretation of the statute which draws the line of its protection at the shop door, and says to the servant engaged in hauling a disabled engine he may cross the threshold and complete his trip only at the price of assuming all risk of injury from the negligence of his felloW-servants. Doubtless the majority does not want to be
While the facts before us are involved in little if any dispute, they are such the court can not properly say that reasonable minds may not differ in the inferences to be drawn therefrom, and for this reason also the plaintiff should have been permitted to go to the jury.
In my opinion, the judgment below should be reversed.