Braun v. Chicago, Rock Island & Pac. R. Co.

• Decision Date: 08 June 1880
• Citation: 53 Iowa 595,6 N.W. 5
• Court: Iowa Supreme Court
• Parties: BRAUN v. CHICAGO, ROCK ISLAND & PACIFIC R. CO.

53 Iowa 595

6 N.W. 5

BRAUN

v.CHICAGO, ROCK ISLAND & PACIFIC R. CO.

Supreme Court of Iowa.

Filed June 8, 1880.

Appeal from Van Buren district court.

The plaintiff was in the employ of the defendant as brakeman on a freight train. On one of the cars composing the train there was a ladder for the purpose of enabling the employes to ascend and descend, and also a “hand hold,” for the purpose of aiding them in reaching the ladder. Among other grounds of negligence in the petition, it was alleged that said “hand hold” was out of repair, and by reason thereof the plaintiff, while attempting to descend from said car, as his duty required him to do, was thrown violently to the ground and greatly injured. It was also alleged that the defendant was guilty of negligence in placing said car in said train. There was a trial by jury, and at the conclusion of the evidence the court, on motion of the defendant, directed the jury to find for it, which was done, and judgment rendered thereon. The plaintiff appeals.Traverse, Payne & Eichelberger and M. H. Jones & Sons, for appellant.

Trimble, Carruthers & Trimble and M. A. Low, for appellee.

SEEVERS, J.

The “hand hold” is made of iron and fastened to the top of the car, for the use of the employes when ascending or descending the car. That it was loose or unfastened at one end when the plaintiff attempted to descend, because his duty required him to do so, and that, in consequence thereof, he was thrown or fell to the ground and was greatly injured, without fault on his part, must, for the purposes of this case, be conceded.

The court directed the jury to find for the defendant, because-- First, “there was no evidence sufficient to warrant the jury in finding for the plaintiff;” and, second, “there was no evidence tending to prove that the defendant knew, or by the exercise of ordinary care could have known, of the defect in the hand hold.” These propositions need not be separately considered. The accident occurred in the state of Missouri, and it is conceded by both parties there is no statute in that state which affects the questions to be determined.

At common law the rule is that railroad corporations are not insurers of the personal safety of their employes, and that the latter assume the ordinary risks incident to the hazardous business in which they are engaged. But such corporations are bound to use ordinary care in the selection of machinery and appliances, so as not to subject the employe to unreasonable danger that must follow from insufficient tools and appliances, or which are out of repair and therefore insufficient for the purpose intended. It may be assumed that a car, when first placed upon the track, is in proper condition and in every respect suitable for its intended use. But it is a well-known fact that in time it will become out of repair and unfit for use. It is not the duty of the employe, who is required to simply use said car when it composes a part of a train, to ascertain and know at his peril when such time occurs. Such, however, is the duty of the corporation, and ordinary care must be used to ascertain whether the car is fit to be used, and what is such care must be measured by the character of the business and the risks attending its prosecution.

Negligence on the part of the corporation may consist of acts of omission or commission, and it necessarily follows that the continuing duty of supervision and inspection rests on the corporation; for it will not do to say that, having furnished suitable and proper machinery and appliances, the corporation can thereafter remain passive. The duty of inspection is affirmative, and must be continuously fulfilled and positively performed. In ascertaining whether this has been done or not the character of the business should be considered, and anything short of this would not be ordinary care. As the corporation must act through agents and employes, the negligence of the employe upon whom the duty of inspection is devolved is the negligence of the corporation. The brakemen on freight trains and such inspector cannot be regarded as co-employes in such sense as to prevent the former from recovering of the corporation because of the negligence of the latter.

The following authorities fully, we think, sustain the foregoing views: Greenleaf v. I. C. R. 29 Iowa, 14;Kroy v. C., R. I.& P. R. Co. 32 Iowa, 357;Buzzell v. Laconia Mfg. Co. 48 Me. 113;Shanny v. Androscoggin Mills, 66 Me. 420;Snow v. Housatonic R. Co. 8 Allen, 441;Gilman v. Eastern R. Co. 10 Allen, 233;S. C. 13 Allen, 433;Ford v. Fitchburg R. Co. 110 Mass. 241;Mullan v. Phila. & Southern Mail Steamship Co. 78 Pa. 25;C. & N. W. R. Co. v. Jackson, 55 Ill. 492;...