78 Iowa 583 | Iowa | 1889
On the third day of February, 1886, the plaintiff and others were employed by defendant to remove snow and ice from its track. On that day the men so employed left Humeston on a train of defendant, and worked westward, arriving at Weldon about midnight. When not actually engaged in shoveling the men sat in a caboose attached to the train, and rode therein from point to point where their services were required. At Weldon a passenger and a freight train were met, and at about one o’clock in the morning of the fourth the freight train left Weldon, going east, followed by a train made up of two engines, the caboose, and a passenger, and perhaps other cars. The shovelers rode in the caboose, and were compelled to shovel the freight train out of the snow once or twice before it reached Le Roy. It was a cold, dark night, and the snow was drifting. At a point about half a mile east of Le Roy, and between three and four o’clock in the morning, the train on which plaintiff rode was stopped at a bridge in such a manner that the front end of the caboose stood on the bridge, twenty feet or more above the level of the ground below. A water-closet was located in the northeast corner of the caboose, and was partially filled with shovels and picks, so that it could not be used for the purpose for which it was designed without removing them. Just south of the water-closet was the east door of the caboose. The front of the engine to which the caboose was attached was to the west. When the train had been stopped about half an hour, the plaintiff, urged by a pressing necessity, sought to use the water-closet, but finding that it was not in condition for use, and, having no knowledge that the caboose was on a bridge, opened the east door, and went upon the platform, for the purpose of relieving himself. The platform was covered with ice and snow to the depth of two or three inches, and was slippery. When
I. Appellant contends that defendant is liable in this action, by reason of the facts we have stated, under that section of the Code which reads as follows: “Sec. 1307. Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employes of the corporation, and in consequence of the wilful wrongs, whether of commission or omission, of such agents, engineers or other employes, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding.” It has been repeatedly held ^by this court that the employes who are entitled to the benefit of that section are those who are engaged in the business of operating railroads. Deppe v. Railway Co., 36 Iowa, 52; Malone v. Railway Co., 65 Iowa, 417, and cases therein cited; Luce v. Railway Co., 67 Iowa, 75; Smith v. Railway Co., 59 Iowa, 74; Stroble v. Railway Co., 70 Iowa, 559. It has also been held that employes who are, by the nature of their employment, exposed to the hazards incident to moving trains, are within the statute, even though they are not engaged in operating them. Pyne v. Railway Co., 54 Iowa, 225; Frandsen v. Railway Co., 36 Iowa, 372; Pieree v. Railway Co., 73 Iowa, 142; Nelson v. Railway Co., 73 Iowa, 576. In Foley v. Railway Co., 64 Iowa, 644, it was held that the wrongs
II. The conclusion we have reached renders. a decision of other questions discussed by counsel unnecessary. For the error of the court in withdrawing the case from the jurj' its judgment is
Reversed.