Farmer v. Cent. Iowa Ry. Co.

• Decision Date: 07 October 1885
• Citation: Farmer v. Cent. Iowa Ry. Co., 67 Iowa 136, 24 N.W. 895 (Iowa 1885)
• Parties: FARMER v. CENTRAL IOWA RY. CO.
• Court: Iowa Supreme Court

67 Iowa 136

24 N.W. 895

FARMER

v.CENTRAL IOWA RY. CO.¹

Supreme Court of Iowa.

Filed October 7, 1885.

Appeal from Keokuk district court.

Action to recover for personal injuries sustained by plaintiff, who was in the employment of defendant, through the negligence of a co-employe under whose direction he was working. There was a judgment upon a verdict for plaintiff. Defendant appeals.J. H. Blair, A. C. Daly, and G. D. Woodin, for appellant, Central Iowa Ry. Co.

J. F. & W. R. Lacey, for appellee, C. W. Farmer.

BECK, C. J.

1. The plaintiff being employed as a “section hand” by defendant, with another “section hand,” and a “boss,” for the purpose of cleaning snow from a portion of the track of the section of which they had the care, went upon a hand car about three miles, in order to begin the work of the day. The morning was excessively cold; the thermometer, according to plaintiff's testimony, being 37 deg. below zero. Plaintiff voluntarily went upon the car; that is, it would not have been regarded as an act of insubordination had he refused to go. The workmen had not proceeded more than half the way when plaintiff complained that his feet were very cold, and he feared they were freezing, and expressed a wish to stop the car, which was running at about 12 miles per hour, that he might get off and walk. It appears that the “boss” made no reply, and it is not shown that he heard the request. Soon after a like request was made, to which the “boss” made an evasive reply, and with which he did not comply. In a few minutes, not exceeding 10, after the last request, the car was stopped. The “boss” and the other man went into a “tank-house” for a time, where some shelter was afforded from the extreme cold. The plaintiff remained outside. In a short time the three proceeded to the work of shoveling snow at points on the track beyond the place at which they had stopped. They returned to the “tank-house” about 2 o'clock, and took their dinner at 4. Plaintiff then informed the “boss” that his feet were frozen, and that he desired to go home. He was taken home upon the hand car, when it was found that his feet were severely frozen. He has suffered greatly from the injury, which is permanent. These facts appear in the testimony of plaintiff. Some of them are stated differently, or are disputed in the evidence for defendant.

The testimony for defendant shows, and the facts are not disputed, that plaintiff could have stopped the car at any time by the use of the brake, and it would not have been regarded as an act of insubordination; and by the same evidence it appears that there was a stove in the “tank-house.” There was no fire built in it when the men were there in the morning, but there was a fire in it when they took their dinners in the afternoon.

2. Assuming, for the purpose of the case, that defendant would be liable for negligence of the “boss,” if any be shown, we are of the opinion that the evidence fails to show facts from which such negligence may be inferred. Had the “boss” been advised that plaintiff's safety required him to stop the car, it would doubtless have been negligence for him not to have done so. But we are clearly of the opinion that the “boss” could not have inferred from plaintiff's request that he was in imminent danger, which could only be avoided by stopping the car. Plaintiff's request, according to his own testimony, was not made with the earnestness and urgency with which men usually make known their wants when their personal safety depends upon the thing wanted.

3. We think, too, that plaintiff failed to exercise proper care to avoid the injury; that in fact he contributed thereto by his own negligence. If it was necessary to have the car stopped for him to get off, it was in his own power to stop it. Ordinary prudence required him to do this. His failure to do it was negligence contributing to the injury. We think, too, that he failed to exercise proper care in not going into the “tank-house,” and negligently exposed himself to the intense cold, when he could have had shelter and a fire. This negligence doubtless contributed to his injury, and he cannot recover therefor.

In our opinion the district court erred in failing to instruct the jury in accord with these views, and in overruling a motion for a new trial. Other questions discussed by counsel need not be considered. Reversed.

NOTE.

Risks of Employment and Negligence of Superior Servant.

1. RISKS OF EMPLOYMENT When a person enters into the service of another he assumes all the ordinary risks incident to the employment, Woodworth v. St. Paul, M. & M. Ry. Co., 18 Fed. Rep. 282; Mentzer v. Armour, Id. 373; Sunney v. Holt, 15 Fed. Rep. 880; Howland v. Milwaukee, L. S. & W. Ry. Co., 11 N. W. Rep. 529;Herbert v. Northern Pac. R. Co., 13 N. W. Rep. 349;Piquegno v. Chicago & G. T. R. Co., 17 N. W. Rep. 232;Richards v. Rough, 18 N. W. Rep. 785;Madden v. Minneapolis & St. L. Ry. Co., 20 N. W. Rep. 317;Hannibal & St. J. R. Co. v. Fox, 3 Pac. Rep. 320; Leary v. Boston & A. R. Co., 2 N. E. Rep. 115; and the employer agrees, by implication of law, not to subject him to extraordinary or unusual peril, and that he will furnish and maintain in repair suitable machinery, reasonably safe, with which to perform this work, Gravelle v. Minneapolis & St. L. Ry. Co., 10 Fed. Rep. 711; Armour v. Hahn, 4 Sup. Ct. Rep. 433;Thompson v. Drymala, 1 N. W. Rep. 255;Thompson v. Hermann, 3 N. W. Rep. 579;Braun v. Chicago, R. I. & Pac. R. Co., 6 N. W. Rep. 5;Herbert v. Northern Pac. R. Co., 13 N. W. Rep. 349;Moran v. Harris, 19 N. W. Rep. 278;Solomon R. Co. v. Jones, 2 Pac. Rep. 657; McGee v. Boston Cordage Co., 1 N. E. Rep. 745; Bowers v. Union Pac. R. Co., 7 Pac. Rep. 251; Cunningham v. Union Pac. Ry. Co., Id. 795; Bean v. Oceanic Steam Nav. Co., 24 Fed. Rep. 124; but he does not covenant to furnish machinery and appliances that are safe beyond a contingency, nor that they are as safe as those of others using the same kind. Richards v. Rough, 18 N. W. Rep. 785; Sjogren v. Hall, Id. 812; Batterson v. Chicago & G. T. R. Co., Id. 584. The employe takes upon himself those risks, and only those, that are usually incident to the employment engaged in, and in absence of statute the negligence of a fellow-servant is a risk assumed by the employe as a risk of the business or employment. Thompson v. Chicago, M. & St. P. Ry. Co., 14 Fed. Rep. 564; Totten v. Pennsylvania R. Co., 11 Fed. Rep. 564. It has been held that a master is liable in damages for taking an inexperienced employe into danger without warning, Parkhurst v. Johnson, 15 N. W. Rep. 107, but infancy or ignorance of the employe does not, of itself, give him cause of action against his employer for injury resulting from setting him at dangerous work, if it appears that the employe was of average intelligence, and that his duties were explained to him when he entered upon the employment. McGinnis v. Canada Southern Bridge Co., 13 N. W. Rep. 819. Yet where an employe is put at other and more dangerous employment than he undertook to do, and is injured, the master will be liable. Jones v. Lake Shore & M. S. Ry. Co., 14 N. W. Rep. 551. Where a servant, knowing the hazard of the employment as the business is conducted, is injured while engaged therein, he cannot recover merely on the ground that there was a safer way of conducting the business, the adoption of which would have prevented the injury. Naylor v. Chicago & N. W. Ry. Co., 11 N. W. Rep. 24;Lopez v. Central Arizona Min. Co., 2 Pac. Rep. 748, Stafford v. Chicago, B. & Q. R. Co., 2 N. E. Rep. 185.

A railroad employe does not necessarily assume the risks incident to the use of unsafe machinery furnished him because he knows its character and condition; but it is necessary that he understood, or by exercise of common observation ought to have understood, the risks to which he was exposed by its use. Russell v. Minneapolis & St. L. Ry. Co., 20 N. W. Rep. 147;Cook v. St. Paul, M. & M. Ry. Co., 24 N. W. Rep. 311. And in a recent case it is said that while the servant assumes the ordinary risks of his employment,and, as a general rule, such ordinary risks as he may knowingly and voluntarily see fit to encounter, he does not stand upon the same footing with the master as respects the matter of care in inspecting and investigating the risks to which he may be exposed. He has a right to presume that the master will do his duty in that respect, so that, when directed by proper authority to perform certain services, or to perform them in a certain place, he will ordinarily be justified in obeying orders without being chargeable with contributory negligence or the assumption of the risk of so doing, provided he does not rashly and deliberately expose himself to unnecessary and unreasonable risks which he knows and appreciates. Cook v. St. Paul, M. & M. Ry. Co., 24 N. W. Rep. 311.

(1) Ordinary Risks. It may be said to be well settled that one who voluntarily enters the service of another takes upon himself the natural and ordinary risks incident to such employment, Smith v. Railway Co., 69 Mo 38;Porter v. Railway Co., 60 Mo. 160;Coombs v. Cordage Co., 102 Mass. 572;Perry v. Marsh, 25 Ala. 659;Gibson v. Erie Ry. Co., 63 N. Y. 449;Toledo, etc., Ry. Co. v. Black, 88 Ill. 112;Gibson v. Pacific R. Co., 46 Mo. 163;Wonder v. Baltimore, etc., R. Co., 32 Md. 411;Strahlendorf v. Rosenthal, 30 Wis. 674; as well as those growing out of patent or known defects. De Forest v. Jewett, 23 Hun, 490. In the case of Blake v. Railroad Co., 10 Reporter, 426, it was held by the supreme court of Maine that the servant undertakes or contracts against all the natural or ordinary risks of the employment, including that of the negligence of fellow-servants, and a number of cases uphold the same doctrine. Beaulieu v. Portland Co., 48 Me. 295;Lawler v. Androscoggin R. Co., 62 Me. 467;Warner v. Erie Ry. Co., 39 N. Y. 469;Zeigler v. Day, 123 Mass. 152. A number of others hold that this is...