70 Iowa 555 | Iowa | 1886
I. There was evidence tending to establish the following facts: Plaintiff, witb another, was employed to
II. The district court gave the jury the following instruction, introducing the direction given by a question, the answer to which announces the rule of law recognized by the court below: “Was it the plaintiff’s duty, under his contract of employment, to see that the stairs in question were kept in a reasonably safe condition?” “If you find from the evidence that such was the plaintiff’s duty under his contract of employment, the case is at ail end, and your verdict will be for the defendant. In deciding this question, you will notice particularly what the plaintiff was employed
The instruction referred to in the last paragraph of the foregoing is as follows: “(7) The next question to which I call your attention is this: Did the plaintiff use ordinary care, on his part, to avoid or prevent the injuries of which he complains? If he did not, he cannot recover anything. By ordinary care is here meant that reasonable degree of care which a person of ordinary prudence and caution would use for his own safety, in the situation of the plaintiff, and under circumstances such as surrounded him. The plaintiff was not at liberty, simply because he was a servant not charged with the duty of looking after the stairs, if such was the fact, to shut his eyes to the condition of the stairs that he was himself using. ITe was required to use ordinary care, in the sense just defined, in observing their condition while using them; and, if plaintiff knew of defects in the stairs which would indicate to the ordinary mind that they were unsafe for use, and if . he continued to use them in that condition, without reporting their condition to his employer, he was guilty of negligence, and cannot recover. So if, for the want of ordinary care and observation, he failed to discover the unsafe condition of the stairs, and for this reason continued to use them until he was injured, he was negligent, and cannot recover.”
In the first of these instructions, (the fifth,) the district
Ill. The district court, in the seventh instruction above quoted, presented the question of the care of plaintiff to the jury, and held that negligence in failing to discover the defect of the stairs would defeat recovery. But the requirements of care and the obligations of duty are very different. An employe is required to exercise care for his own protection. At least the cases only treat of it in that light. Duty demands that he should observe and inspect the condition of the appliances used by him, not only for his own protection, but to promote the interest of his employer. This duty imposes an obligation for greater watchfulness than the requirement that he should exercise care. The instructions upon the subject of care do not take the place of proper directions presenting the subject of duty to the consideration of the jury.
IT. The court, in an instruction, held that defendant is liable to the plaintiff for the negligence of his co-employes.
The statute, it will be observed, holds the corporation liable for the negligence of a co-employe which is “in any manner connected with the use and operation of any railway.” What is the use and operation of a railway?” It is constructed for the sole purpose of the movement of trains. That is its sole use. What is the operation of a railway ? They can be operated in no other way than by the movements of trains. See, in support of these views, Foley v. Chicago R. I. & P. R’y Co., 64 Iowa, 644; Malone v. Burlington, C. R. & N. R’y Co., 65 Iowa, 417. The instruction considered in this point of our opinion was not applicable to the facts of the case, and ought not to have been given.
Other questions discussed by counsel need not be considered. For the errors pointed out the judgment of the district court is Reversed.