Ehrenberger v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 12 March 1918
• Docket Number: 31167
• Citation: 166 N.W. 735,182 Iowa 1339
• Parties: JOSEF EHRENBERGER, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

166 N.W. 735

182 Iowa 1339

JOSEF EHRENBERGER, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 31167

Supreme Court of Iowa, Des Moines

March 12, 1918

Appeal from Linn District Court.--MILO P. SMITH, Judge.

ACTION to recover damages for personal injuries. Opinion states the facts. Judgment for the plaintiff. Defendant appeals.

Reversed.

Grimm & Trewin, F. W. Sargent, and J. G. Gambel, for appellant.

O. N Elliott and Rickel & Dennis, for appellee.

GAYNOR J. PRESTON, C. J., SALINGER and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

This action is brought to recover damages for personal injury. The plaintiff, a man forty-two years of age, was employed as a day laborer at the defendant's roundhouse in Cedar Rapids. Among his various duties was that of handling wood for use in the roundhouse. He was injured January 20, 1912, about 10 o'clock at night. Just prior to his injury, he was ordered by the foreman to carry some wood to the roundhouse from the yards, a distance of about one and one-half blocks. A push car was furnished for that purpose; but on this particular night, he was unable to use it, because the passageway was obstructed by cars standing on the tracks between the place where the wood was situated and the roundhouse. There was snow on the ground, and it was cold. Just prior to his injury, he was ordered by the foreman of the roundhouse to carry this wood. Plaintiff informed the foreman that the wood was too heavy, and he needed a helper; but the foreman directed him to get the wood, "if he cared to keep his job." The wood consisted of ties, heavy, old, and a little decayed, or rotten. Upon receiving this order, he did carry considerable quantities of wood to the roundhouse, and split it up for use in firing the engines. He seems to have had no trouble in doing this until the wood was nearly all transported. There seem to have been two large pieces left. Upon discovering these large pieces, and that they were heavy, he informed the foreman that he needed a helper. He told the foreman that there was a heavy piece of wood, too heavy for him to carry alone, and that he needed a helper. The foreman did not inquire as to the size or weight of the wood,--in fact, inquired nothing about the wood,--but instructed plaintiff to go and carry it, as he needed fire to start the engine. Plaintiff returned to the wood pile. He testifies:

"When I got this piece of timber (this heavy piece), I stood it on one end, bent my shoulder toward it, and put it on my shoulder. It weighed 220 or 230 pounds. After I got it on my shoulder, I carried it over the same way I had taken the other pieces of wood. I had no trouble in carrying the heavy piece of timber until I got to the place where I was injured. I carried it on the right shoulder, with the point forward. I got to the opening, and I was afraid the timber was going to fall off my shoulder; so I bent over. Then I felt a pain, but I continued with the wood upon my shoulder. I rested the piece for a while on the coupling of one of the cars. When I got the piece of wood to the roundhouse, I split it up. Later, I became ill, and went home and called a physician."

When the plaintiff returned, after carrying some of the wood, he notified the foreman that there were no more small pieces; that the pieces left were too big and too heavy for him; but the foreman responded, "Bring them in right away, quick. We need them for building fires." Plaintiff was a stout, heavy man, weighing about 192 pounds, was strong and healthy, and, prior to this time, had never been sick.

At the conclusion of all the evidence, the defendant moved for a directed verdict, on the ground that the plaintiff assumed the risk; that it was incident to his employment; that whatever injury he sustained was due to the risk that he assumed; that no negligence could be charged to the defendant. This motion was overruled, and the case submitted to the jury, and it returned a verdict for plaintiff.

The injury sustained by the plaintiff consisted of a rupture, due to overexertion in attempting to carry this heavy piece of wood. It is apparent that plaintiff's injuries were due to his effort in attempting to carry a piece of wood too heavy for him to carry; that he was directed by defendant's foreman to carry wood from the yards to the roundhouse, a distance of about a block and a half; that defendant's foreman was informed that the wood was heavy, and that plaintiff needed a helper; that plaintiff had done this work many times before. There is no evidence that the defendant knew the character of the wood which he ordered plaintiff to carry. There is evidence that the plaintiff knew; or at least assumed to know, and so informed the foreman; that he had observed this piece, and that it was too heavy for him to carry. However, he undertook to carry it to the roundhouse.

There is but one question in this case: Did the plaintiff assume the risk incident to the act which he undertook to perform? If, as a matter of law, he did assume the risk, then, of course, under the authorities, he cannot complain of injuries which arose from the risk assumed.

The doctrine of assumption of risk is not of very ancient origin. The doctrine rests on the thought that the employee, upon entering the employment of the master, assumes all the risks that are ordinarily and usually incident to the service upon which he enters, and if he is injured solely by reason of these perils, he is not entitled to recover. It is expressed in the words "volenti non fit injuria." The real foundation rests on the thought that he has voluntarily entered the employment, with knowledge of the perils to which he subjects himself when he enters, and the assumption is that he is paid for the extra hazard incident to the perils, be they great or small. This is another way of saying that the law imposes upon the servant the hazards which are usually and ordinarily incident to the employment in which he engages, when such hazards are not traceable to any dereliction of duty on the part of the Master, and their existence is not due to any negligence on the part of the master. Negligence rests in tort, or the omission of some duty. Where the risk is not traceable to this, but inheres in the very employment, as an incident to it, and usually and ordinarily attends it, then the servant is said to have assumed such risk, and cannot complain of injury. The reason why he cannot complain is that the injury is not traceable to any dereliction of duty on the part of the master. The very thought that the servant assumes the risk suggests that no duty resting on the master has been violated, to the injury of the servant; or, in other words, that the injury is not traceable to the negligence of the master. Assumption of risk is recognized and enforced by the courts, except where the servant has been relieved from its operation by an express statute. Frequently, risks due to the negligence of the master are said to have been assumed by the servant, when he continues work with knowledge of the negligence and the peril incident thereto, without complaint and without promise of remedy. This is not properly the assumption of the risk here under consideration. It is more proper to say, in the last instance, that the act of the servant in continuing in the employment after discovering the negligence of the master, without complaint and without promise of repair, is a waiver of such negligence. The last must be pleaded by the defendant if he would avail himself of it, but the other need not. The ordinary risks which the servant assumes are such as are incident to his employment, risks ordinarily incident to the service upon which he embarks, of which he has notice, or which are patent and obvious to him. To put the matter more succinctly, the servant assumes all risks, on entering the employment, which are incident to the employment, but does not assume the risks which are not usually and ordinarily incident to the employment. Carelessness and negligence on the part of the master are not incidents of the servant's employment, and the servant does not assume the risks arising therefrom. The theory of the law is that one who engages in hazardous employment, where dangers usually and ordinarily attend the employment, and he knows the perils upon which he enters, and receives injuries traceable to these perils, he cannot complain. The presumption is that, upon entering employment of that character, he receives compensation commensurate with the dangers that are incident to the employment, and assumes the perils from this danger.

In the instant case, the plaintiff had observed and had formed an opinion as to the size and character of the log, before undertaking to remove it from the pile to the roundhouse. He knew, or should have known, his own strength his ability to transport the log from one point to the other. There is no evidence that the master had any knowledge of the character of the log, other than such as came to him from the plaintiff, to wit, that it was too heavy for the plaintiff to carry, and plaintiff needed a helper in transporting it. The defendant had done nothing to create the condition. It existed there, with the full knowledge of the plaintiff, at the time he undertook the service of transporting this log to the roundhouse. We might remark--though the remark is not essential to a proper determination of the case--that the plaintiff had shouldered the log and had transported it some distance before he was injured. He was not injured in the act of lifting the log, but on his journey from the place where he had taken the log upon his shoulder to a point some distance away, at which he says the injury occurred. He had then ascertained the size of the...