Chicago St Ry Co v. Artery

• Decision Date: 22 December 1890
• Citation: 34 L.Ed. 747,137 U.S. 507,11 S.Ct. 129
• Parties: CHICAGO, M. & ST. P. RY. CO. v. ARTERY
• Court: U.S. Supreme Court

137 U.S. 507

11 S.Ct. 129

34 L.Ed. 747

CHICAGO, M. & ST. P. RY. CO. v. ARTERY.

December 22, 1890.

John W. Cary, for plaintiff in error.

H. B. Fouke and D. E. Lyon, for defendant in error.

BLATCHFORD, J.

This is an action at law, brought in the district court of Dubuque county, in the state of Iowa, by James Artery against the Chicago, Milwaukee & St. Paul Railway Company, a Wisconsin corporation, to recover damages for a personal injury, and removed by the defendant into the circuit court of the United States for the northern district of Iowa. The petition alleges that the defendant owns and operates a line of railroad from Dubuque, in Iowa, to La Crosse, in Wisconsin, and St. Paul, in Minnesota, and in the operation of it uses locomotives propelled by steam, hand-cars propelled by hand, and cars drawn by its locomotives; that the plaintiff, on March 5, 1883, and for several months prior thereto, was in the employ of the defendant in the use and operation of the road in the county of Allamakee, in Iowa, in working upon its road and road-bed, in keeping the ties in good order, in keeping the road well and properly ballasted, in removing obstructions from its track, in keeping its culverts and crossings in repair, in keeping the iron on the road properly spiked and fastened, and in keeping the road-bed fit for use and operation along its line of road and right of way in the county of Allamakee; that in doing such work, cars propelled by steam and hand-cars were used by the plaintiff and others, the cars being furnished by the defendant; that while in such employ, the plaintiff left the village of Harper's Ferry, in said county, with other employes, under a foreman of the defendant, named Rellehan, and went north some 10 miles, making repairs on the road; that, after dong such work, and towards evening, the foreman ordered a start to return to Harper's Ferry, on a small hand-car, on which were placed seven or eight men, and more than the car could or ought to carry; that, when the hand-car was ordered by the foreman to start to Harper's Ferry, it was started at the time that a train of cars was due, of which the plaintiff then had no knowledge; that the snow had been falling, and there was snow on the rails, and the foreman ordered the plaintiff to get a shovel and seat himself on the front of the hand-car, and hold the shovel on the top of the rail, in order to remove the snow as the hand-car went forward; that on the hand-car there were no places provided for the feet to rest upon while performing such duty; that the plaintiff was compelled, in order to hold the shovel, to exert all his strength, and by muscular exertion hold up his feet and at the same time guide and hold the shovel; that the hand-car was run ahead of the train, then due, at the rate of more than 10 miles an hour, being a dangerous speed; that while it was so running, and the plaintiff was holding the shovel, and while it was crossing over a cattle-guard in the road, and without any fault or negligence on his part, his foot was caught, and he was thrown off and under the hand-car, his body doubled up, his spine injured, and his backbone broken; that by reason thereof he has been confined to his bed ever since unable to work, and suffering great pain in body and mind; and that all this happened by the negligence of the defendant in furnishing unfit and improper hand-cars, in requiring onerous and dangerous duty from the plaintiff, in running the hand-car at a dangerous rate of speed, and in overloading it. Damages are claimed in the sum of $20,000, besides the sum of $1,000 for money paid for board, care, and surgical and medical treatment. The petition was afterwards amended by alleging further that the hand-car was not constructed with reasonably safe appliances to push the snow off from the rails, which appliances could easily have been furnished by the defendant; that it was wanting in the proper kind of a brake, and the proper kind of a foot-rest for doing the kind of work which the plaintiff was ordered to do; that, when the plaintiff was ordered by the foreman to sit down on the front of the handcar and hold the shovel, he was unaware of any danger therefrom, and had reason to believe and did believe that the handcar would be run by the foreman at a safe rate of speed; that it was run at an unreasonable and unnecessary fast and dangerous speed, which the plaintiff could not control, nor could he leave the car while it was in motion; that the cattle-guard was made of three-cornered pieces of wood, placed negligently on top of the ties, across the track instead of lengthwise, and some of the three-cornered pieces stood higher than the surface of the rail, of which fact the plaintiff was not then aware: and that, by reason of such negligent construction of the cattle-guard, the speed of the hand-car, and the dangerous and tiresome position in which the defendat placed the plaintiff, he was injured either by his foot or feet coming in contact with the rail or the three-cornered pieces, or by the shovel getting caught on the rail or on such pieces, or by all of such circumstances. The answer of the defendant contains a general denial, and an allegation of contributory negligence on the part of the plaintiff. The case was tried by a jury, which rendered a verdict for the plaintiff of $13,500, for which, with costs, he had judgment, to review which the defendant has brought a writ of error.

One of the principal points taken by the defendant is that this was a case of an injury resulting from the negligence of a coemploye, namely, the foreman Rellehan, in the management and running of the handcar, and did not fall within the provisions of the statute of Iowa on the subject. On the 8th of April, 1862, a statute was enacted in Iowa (Laws 1862, c. 169, § 7, p. 198,) as follows: 'Sec. 7. Every railroad company shall be liable for all damages sustained by any person, including employes of the company, in consequence of any neglect of the agents or by any mismanagement of the engineers or other employes of the corporation to any person sustaining such damage.' This provision was afterwards modified by section 1307 of the Code of Iowa of 1873, which was in force at the time of this accident, and read as follows: 'Sec. 1307. Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers, or other employes of the corporation, and in consequence of the willful wrongs, whether of commission or omission, of such agents, engineers, or other employes, when such wrongs are in any manner connected with the use and operation of any railway, on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding.' The modification introduced by the later statute is that the wrongs for which the corporation is to be liable must be wrongs connected with the use and operation of the railway on or about which the employes are employed. It is contended by the defendant that, under the decisions of the supreme court of Iowa upon this statute, only employes engaged in operating and moving trains, and who are injured by such trains, and employes who, while in the discharge of their duty, are injured by trains used in operating the railway, are within the statute, and that, n the present case, the plaintiff was not engaged in operating and moving a train, and was not injured by a train used in operating the railway. But we cannot concur in this view.

In Deppe v. Railroad Co., 36 Iowa, 52, it was held, under the act of 1862, that the statute included the case of an employe who was engaged in connection with a dirt-train, and was injured, while loading a car, by the falling of a bank of earth; and in Frandsen v. Railroad Co., Id. 372, that a person employed as a section-hand, in the business of keeping a certain part of the road in repair, and going with his co-employes on the track on a hand-car for that purpose, was within the act of 1862, he being injured through a collision with the engine of a passenger train which struck the hand-car, and threw it against the plaintiff while he was on the ground, and engaged in trying to remove the handcar out of the way of the engine.

The case of Schroeder v. Railroad Co., 41 Iowa, 344, arose under section 1307 of the Code. It was said in that case that that section applied only to accidents growing out of the use and operation of the road, and did not apply to all persons employed by the corporation without regard to their employment, and it was held, therefore, that it did not cover the case of Schroeder, who was not connected with the operation of the road, but who, while engaged in removing the timbers of an abandoned bridge, and loading them on cars, was injured by some of the timbers which fell from a car. The sae view was held in Potter v. Railroad Co., 46 Iowa, 399, where Potter, a laborer in the machine-shop of the company, was injured by a locomotive driving-wheel, which he and other employes were moving by hand.

It was held, in Schroeder v. Railroad Co., 47 Iowa, 375, that where a person was required in the course of his employment by the railroad company to get upon a train, and did so, he was to be regarded as being engaged in its operation, although his employment might not be connected with the running of the train; and that the company was liable to him for injuries resulting from the negligence of a co-employe.

In Pyne v. Railroad Co., 54 Iowa, 223, 6 N. W. Rep. 281, Pyne was employed by the railroad company as a private detective, and, while walking on the track, in the performance of his duties, and in obedience to the orders of the company, was injured, without negligence on his part, through the negligence of the engineer of a passing train, and it was held that his case fell within the provisions of ...