Hathaway v. Ill. Cent. Ry. Co.

• Decision Date: 23 October 1894
• Citation: 60 N.W. 651,92 Iowa 337
• Parties: HATHAWAY v. ILLINOIS CENT. RY. CO. ET AL.
• Court: Iowa Supreme Court

92 Iowa 337

60 N.W. 651

HATHAWAY

v.ILLINOIS CENT. RY. CO. ET AL.

Supreme Court of Iowa.

Oct. 23, 1894.

Appeal from district court, Lyon county; Scott M. Ladd, Judge.

This action is against the Dubuque & Sioux City and the Illinois Central Railroad Companies; the former being the owner and lessor, and the latter the lessee and operator, of what is known as the Illinois Central Railroad. The action is to recover for personal injuries sustained by the plaintiff while in the employ of the Illinois Central Railroad Company, as engine dispatcher, at its roundhouse at Cherokee, and while engaged, under the direction of one Gus Wehe, another employé, in putting a spring into one of defendants' engines. Plaintiff alleges that he was working under said Wehe, his superior employé, who had authority over plaintiff, and that he was injured as stated while assisting in putting in the spring as ordered by Wehe. He charges that Wehe was a careless, reckless, and incompetent employé; that he carelessly, recklessly, and negligently caused the lever being used in placing said spring to be driven from its place, by reason of which plaintiff was injured; that defendants were negligent in not providing safe and sufficient tools for said work, and in requiring plaintiff to work with the tools furnished, and in not informing him of the danger of working with said tools. In an amendment, plaintiff states wherein the tools furnished were insufficient and unsafe. Defendants answered, denying generally, and alleging contributory negligence. At the conclusion of the evidence offered by plaintiff, the defendants moved for a verdict on grounds, in substance, as follows: That the evidence is not sufficient to sustain a verdict for plaintiff; that there is no evidence of negligence in employing Wehe; there is no evidence of negligence distinct from such negligence of coemployés as may have occurred; that plaintiff was negligent; that he knew the kind of tools being used, and of the danger, and continued at the work; and that the injury did not occur in the use and operation of the railroad. The motion was sustained, the court holding as follows: “It seems to me that under the authorities cited, and the decisions of the supreme court of Iowa, Wehe was not the superior of plaintiff in the employment thereof. It also appears to me that the injury resulted from the failure of Wehe to put the wooden block in the place described by the witnesses, rather than from the use of a defective bar; and, believing that the evidence so shows, the motion of the defendants will be sustained, and the jury instructed to return a verdict for the defendants, on the ground that there is no negligence shown.” Plaintiff's motion for a new trial was overruled, and judgment entered against him on the verdict, from which judgment he appeals. Affirmed.McMillan & Dunlap, for appellant.

J. F. Duncombe and J. M. Parsons, for appellees.

GIVEN, J.

1. The manner of connecting a spring, as was sought to be done in this instance, is as follows: An iron bar, about five feet long, is placed on top of the spring, one end of which is connected with the end of the spring, the other end projecting beyond the spring. A strong lever, about nine feet long, is connected with and below the projecting end of the bar so that by prying down upon it the spring is brought into position to be connected with the hanger by inserting an iron bolt. Wooden edges or blocks are sometimes placed between the spring and the wheels to keep the bar from turning when the pressure is applied. A piece had been cut off the two-inch square steel bar previously, and on this occasion a piece of the top of a railroad rail was used,--“the top of a railroad rail; the part that the wheels run on. It was somewhere about five feet long. It was cut off down where the web commences. It was rounding on both sides.” No wedges were placed between the spring and the wheel. The plaintiff and two other employés were on the lever prying down, and Mr. Wehe was directing their movements, and attending to inserting the iron bolt. The men having the spring sufficiently pressed down, and Mr. Wehe finding the parts not exactly in position, he inserted a small iron bar to bring them into position; and just then the piece of railroad rail on top of the spring, not being blocked or wedged, turned so as to throw the small iron bar against the plaintiff, breaking his jaw, and inflicting other injuries.

2. It is not claimed, nor could it be, on this record, that this case is within the provisions of section 1307 of the Code. Neither the employment in which the...