Byram v. Illinois Central Railroad Company
| Decision Date | 26 November 1915 |
| Docket Number | 30245 |
| Citation | 154 N.W. 1006,172 Iowa 631 |
| Parties | WILLIAM BYRAM, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Black Hawk District Court.--HON. CHARLES W. MULLAN Judge.
ACTION to recover damages for personal injuries received by plaintiff upon a turntable belonging to the defendant company. Plaintiff alleged that he was injured while engaged in interstate commerce, the turntable being used therein, and that the injury was due to the fault of a fellow servant in prematurely starting the turntable. The answer was practically a general denial. The case was tried to a jury resulting in a verdict for plaintiff in the sum of $ 3,000 which the trial court reduced to the sum of $ 1,750, and for the latter amount rendered judgment. Defendant appeals.--Reversed and Remanded.
Reversed and Remanded.
G. W. Dawson and Helsell & Helsell (Blewett Lee and W. S. Horton, on the briefs), for appellant.
J. T. Sullivan, for appellee.
Plaintiff was a fireman on one of defendant's engines, running between Dubuque, Iowa, and Freeport, Illinois. The engine was engaged in interstate commerce and plaintiff was employed therein. On the day of the accident, he came into Dubuque on his engine, arriving there at about 10:30 A. M. He left the engine with the engineer, upon a side track, where, according to rule and custom of the company, it was to be taken in charge by a hostler of the roundhouse. He had no further duty with reference to his engine except to return to it in time to take it out on its next trip, and he expected to find it on a track away from the turntable, ready to go on its journey. It was the duty of the hostler, and of repair and roundhouse men, to take the engine, where it was left by the engineer and fireman, to clean and repair it when necessary, to have it filled with water and placed upon a track, ready to start on its next trip. This also included the turning of the engine upon a table, when necessary, and the placing thereof upon the proper track, ready to leave on its journey. The engineer and fireman were expected to return to the engine about 50 minutes before it was time to go on its next run, to see that everything was supplied which was required and that it was ready to start. They often found the engine in the roundhouse and there looked it over; but, save in a single instance (and even this is in doubt), they never undertook, nor was it their duty, to take or to assist in taking the engine from the roundhouse or to use the turntable to head it in the proper direction or to place it upon the track where it was to be received by the engineer and fireman. On the day of the accident, plaintiff went to the roundhouse, got on the engine and saw that everything was in readiness; when the hostler who was in charge of the roundhouse got upon the engine and ran it onto the turntable. Before the engine started, plaintiff left it in the roundhouse, but followed it out onto the turntable; and when it had been placed thereon, someone, doubtless the hostler, or his helper, asked him to latch or lock the turntable. Pursuant to this request, plaintiff went to the latch, a thing he had never done before during his seven years of employment, and finding it difficult to make the connection, got his hand in such a position that, when the table was moved for some cause, his little finger was caught and injured so that it had to be amputated. The wound became infected and two other amputations were rendered necessary. There was testimony to the effect that one of the hostler's helpers, in charge of the machinery which turned the table, was notified by plaintiff not to move it, as he was going to latch it; and that, while plaintiff was attempting to latch the table, this employee carelessly and negligently, and without warning, applied the air which controlled the table, causing it to move, with the result heretofore stated.
I. The negligence charged in the petition is that of this assistant to the hostler, and there was enough testimony to establish this negligence. Under the liberal construction placed upon the Federal Employers' Liability Act (35 Stat. at Large, Part I, p. 65), by the Supreme Court of the United States, followed as of course by the state courts, it is clear that the moving of the engine, preparatory to attaching it to cars to be run in interstate commerce, before making its run to Freeport, Illinois, was an act in interstate commerce, and the law of the case is furnished by the Federal Act. North Carolina R. Co. v. Zachary, 232 U.S. 248, 58 L.Ed. 591, 34 S.Ct. 305; Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146, 57 L.Ed. 1125, 33 S.Ct. 648; St. Louis, S. F. & T. R. Co. v. Seale, 229 U.S. 156, 57 L.Ed. 1129, 33 S.Ct. 651; Armbruster v. Chicago, R. I. & P. R. Co., 166 Iowa 155, 147 N.W. 337; Winters v. Minneapolis & St. L. R. Co. (Minn.), 126 Minn. 260, 148 N.W. 106.
II. It is also clear that the plaintiff did not assume the risk arising out of the negligence of another employee; for this he could not anticipate or guard against. Caverhill v. Boston & M. R. Co., (N. H.) 77 N.H. 330, 91 A. 917; Norfolk & W. R. Co. v. Earnest, 229 U.S. 114, 57 L.Ed. 1096, 33 S.Ct. 654. Indeed, this rule is so well settled that no authority need have been cited in its support.
III. The question of plaintiff's contributory negligence was properly submitted by the court to the jury, under the rule of the Federal statute which, in substance, adopts the comparative negligence doctrine; and the trial court was not justified in telling the jury that plaintiff's contributory negligence, if shown, would defeat his action.
IV. The real question in the case is whether or not plaintiff was injured while in the course of his employment as fireman, or was employed by defendant in interstate commerce at the time he received his injuries. He alleged in his petition that because of a general strike on defendant's line, it was short of help in the roundhouse at this particular time, and that his was an emergent call to assist the hostler in the performance of his work; but he offered no testimony in support of these allegations. He also alleged that the hostler was short of help (which he did not prove) and that the hostler asked and directed him to latch the table and thus assist in getting the engine turned so that it might be run off on the proper track. He proved that he was requested by the hostler to latch the table; but he introduced no testimony showing, or tending to show, that the hostler had any authority to employ help or to call men to his assistance. He also relied upon a rule of the defendant company, reading as follows: "In case of danger to the company's property, employees must unite to protect it." But there is, as we read the record, no proof of any immediate danger to defendant's property. The engine had safely passed upon the turntable, had reached its proper position thereon and was stationary. It was not intended to move it until the table was latched, and the testimony showed there was no immediate danger even if the table were not latched, provided the engine was properly balanced. There was a helper present whose duty it was to apply the air which moved the table, and he could easily have stepped aside and done the latching. The engine was under proper control and, when plaintiff went to the latch, the table was stationary and did not move, as plaintiff...
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