119 Ark. 477 | Ark. | 1915
(after stating the facts). The uncontro-verted evidence shows that the work of letting down the wheel, in which Wiseman was engaged at the time of 'his injury, was done by the use of a jack if the employees had .a jack for that purpose, and, if not, it was done by using a prize pole. Wiseman had been engaged in this work for several months. Instead of waiting until he could procure a jack, which was the safest way of doing it, and without making any complaint to his foreman that he had no jack for the purpose, he undertook to do the work in the customary way when there were no jacks at hand, by the use of a prize pole, and while so doing, the pole slipped iand he received the injury from which he died.
If the use of the scantling. Ayas dangerous, which it proved to be, Wiseman 'knew 'and appreciated it, and it therefore was a risk which he assumed. See Crawford’s Digest, vol. 5, p. 1079, f., “Risks.assumed by a servant.”
The purpose of the Act of 1911 was not to include all the employees engaged in every department of the service. K. C. & M. Ry. Co. v. Huff, 116 Ark. 461, 173 S. W. 419; Ry. v. Ingram, supra. But its design was for the protection of those whose work exposed them to those “characteristic dangers peculiarly connected with the operation of railroads known as ‘railroad hazards.’” Peter Johnson v. Great Northern Ry. Co., 104 Minn. 444, 116 N. W. 936.
“Bailroiad Hazards,” in the sense of this statute, are those peculiar dangers to which employees are exposed while they are engaged in work connected with, and necessary to the operation or running of trains over a line of railroad. In Railway Company v. Ingram, supra, we said: “It includes every employee who, when injured, was performing some work in the line of his duty directly connected with iand incident to the use 'and operation of ia railroad. ’ ’ The facts show the sense in which the words “use and operation of a railroad” were employed. The words “use and operation of a railroad” as used in the opinion relate to that department of the service in which employees,. at the time of their injury, are actually engaged in the running of trains or in work that is incident thereto or intimately connected therewith.
It would he a difficult task' to determine in advance and to define specifically what cases may fall within the purview of the statute. Each case will depend upon its own peculiar facts as developed. But the undisputed facts of the present record show that Wiseman, at the time of his injury, was engaged in the work of repairing a car in the shops at MoQ-ehee. This work in no manner exposed him to those peculiar hazards which are incident to, and connected with, the physical use and operation of a line of railroad, and the work in which he was engaged did not bring him within the protection of Act No. 88, of the Acts of 1911, as construed iby us in Railway Company v. Ingram, supra.
In Potter v. Chicago, Rock Island & Pacific Ry. Co., 46 Iowa, 399, it was held that the liability of a railway company to an employee injured in a machine shop is determinable by the common law, and not by the statute, since such employee, within the meaning of the statute, was not engaged in “the operation of a railroad.” And in Hathaway v. Illinois Cent. Ry. Co., 92 Iowa 337, it was held that an engine dispatcher who was assisting a machinist in placing a spring in one of defendant’s locomotives was not engaged in work “in any manner connected with the use and operation of a railroad” within the meaning of those terms as employed in the statute.
The construction we have placed upon the statute is the same-as if the above terms were embodied in it and were used in the sense above indicated. The court erred in its ruling upon the instructions.
The judgment is therefore reversed and the cause dismissed.