Foley v. Chi., R.I. & P.R. Co.

Decision Date24 October 1884
Citation21 N.W. 124,64 Iowa 644
CourtIowa Supreme Court
PartiesFOLEY v. CHICAGO, R. I. & P. R. CO.

OPINION TEXT STARTS HERE

Appeal from Polk circuit court.

This is an action for a personal injury received by the plaintiff while engaged in repairing a car of the defendant which was standing upon a side track in the city of Des Moines. When the plaintiff had introduced all of his evidence and rested his case, the court, on motion of the defendant, directed the jury to return a verdict for the defendant. The plaintiff appeals.Cole, McVey & Clark, for appellant.

Wright, Cummins & Wright, for appellee.

ROTHROCK, C. J.

1. For some time prior to receiving the injury for which the action was brought, the plaintiff had been in the employ of the defendant as a car-repairer. His work was on the line of railroad, and not in the machine or repair shops, and the repairs he and the others of the force with whom he worked were required to make, were such as could be made upon the track and side tracks of the road. On the morning of the ninth of June, 1882, plaintiff assisted in making certain repairs on a car standing on the hospital or repair track, in the yards of the defendant at Des Moines, and from there proceeded to repair another car upon the same track. Plaintiff and his co-laborers raised one end of the body of the car from the track with jack-screws, and plaintiff and another man then went under the car at the raised end to make the required repairs, and while there the car moved forward and tilted, and the jack-screws and one of the wheels ran onto the plaintiff's foot and crushed it, so that amputation became necessary. It is alleged that the wheels of the car had not been blocked, and that at the time of the injury an employe was using a bar or lever upon the part of the track which the plaintiff was repairing. It is claimed by plaintiff that the prying with the lever at the place where it was done was unusual, and that the movement of the car was caused thereby, and that he would not have been injured if the car had been blocked. It also appears that the track upon which the car stood was upon quite a considerable grade.

The main question in the case, as we understand it, is whether the plaintiff was engaged in the service of the defendant in such capacity that he is entitled to recover damages for an injury by reason of the negligence of a co-employe. To determine this question it is necessary to ascertain from the testimony the nature and scope of the plaintiff's duties as an employe of the defendant. The plaintiff testified upon this point substantially as follows: The headquarters of the force of car-repairers to which plaintiff belonged was at Des Moines. Plaintiff did no work in shops, but repaired cars on all of the tracks of the company in the yard at Des Moines. He also assisted in repairing cars at other stations along the road as far west as De Soto, and as far east as Newton. Some weeks he went three or four days to other places than Des Moines, and other weeks not more than one day. He was required to go wherever repairing was to be done; and sometimes the cars were repaired in the trains, and at other times they would be set off from trains for that purpose. When he went to stations away from Des Moines, he traveled sometimes on a freight and sometimes on a passenger train, and upon passes furnished to him by the foreman of the car-repairers. If he traveled on a freight train, he rode in the caboose. He did not go out on any train after June 1, 1882. While going on the trains east or west as car-repairer, if there was a hot box broken in the train, plaintiff was required to assist in repairing it, and if at a station where a defective car was set out, he was required to assist in its repair.

The question to be determined is whether, under section 1307 of the Code, which is the law now in force in reference to the liability of railroad companies for injuries resulting to an employe by reason of the negligence of a fellow-servant, there can be any recovery under the facts in this case. There was no liability at common law. Sullivan v. M. & M. R. Co. 11 Iowa, 421. By section 7, c. 169, of the Laws of 1862, it was enacted that “every railroad company shall be liable for all damages sustained by any person in consequenceof any neglect of the agents, or by any mismanagement of the engineer or other employe of the corporation to any person sustaining such damage.” This act was held to be constitutional in the cases of McAunich v- M. & M. R. Co. 20 Iowa, 338, and by Ney v. Dubuque & S. C. R. Co.Id. 347. It was held in those cases that the law was not repugnant to article 3, § 30, of the constitution, which requires that “all laws shall be general and of uniform operation throughout the state.” The ground of these decisions was that “the same liability is extended by the act upon the same terms to all in the same situation;” and in the last-named case it was held that, “in connection with railroads, the term ‘employe’ applies to conductors, agents, superintendents, and others engaged in operating the road, and the like, and not to contractors or persons building or constructing the road-bed, or laying down the ties and rails.”

The case of Deppe v. Chicago, R. I. & P. R. Co. 36 Iowa, 52, was determined under this statute. In that case the plaintiff was employed in shoveling earth onto flat cars. The earth was hauled by an engine about two and one-half miles from the bank, where it was used in making an embankment at a bridge. Sometimes plaintiff went with the train to unload, and at other times he remained at the bank to undermine with a pickax. While engaged in shoveling on a car the impending bank fell upon him and injured him. Under these facts it was held that the plaintiff's duties were such as to authorize a recovery under the statute. The court said: “The manifest purpose of the statute was to give its benefits to employes engaged in the hazardous business of operating railroads. When thus limited, it is constitutional; when extended further, it becomes unconstitutional.” This further language is employed in the opinion in that case: We have thus stated our views at some length to avoid misconstruction; for we hold that the court held correctly in refusing the instruction asked, and this because the employment of the plaintiff was connected with the operation of a railway train. It is true, he was not injured while on or by operating the train; but neither the act itself nor the constitutional limitation requires us to put this very narrow construction upon it. The plaintiff was employed for the discharge of a duty which exposed him to the perils and hazards of railroads; and, although the injuries did not arise from such hazards, they cannot be separated from the employment. If the plaintiff had been employed exclusively for shoveling or loading the dirt he could not recover, although he might have rode to and from his work on the cars. In 1870 this court determined that a railroad company was not liable where the engineer in charge of an engine intentionally and willfully ran his engine against live-stock. Cook v. Illinois Cent. R. Co. 30 Iowa, 202.

In April, 1872, the legislature passed another act fixing the liability of railroad companies, which is as follows: Section 1. That every corporation and person owning or operating a railroad in this state shall be liable for all damages sustained by any person in consequence of the willful wrongs, whether of commission or omission, of their agents and...

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