Hughes v. Iowa Cent. Ry. Co.
| Decision Date | 03 May 1905 |
| Parties | HUGHES v. IOWA CENT. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Marshall County; G. W. Burnham, Judge.
Action at law to recover damages for personal injuries received by plaintiff while in defendant's employ as a car repairer. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Affirmed.George W. Seevers, John O. Malcolm, and Cummings & Mote, for appellant.
Boardman, Aldrich & Lawrence, for appellee.
Defendant's yards in the city of Marshalltown cover many blocks of ground, and between the passenger station and the roundhouse and machine shops there are countless tracks, main line and switches, running almost east and west. North of the engine house and the turntable is the coal chute, and between them are three tracks, running east and west. The northernmost of these tracks, running close to and parallel with the coal chute, was known as the “coal track.” South of the coal track, and within a short distance thereof, was the repair or “rip track,” also running nearly east and west. This track joined the coal track some distance south of east of the coal chute. South and east of the coal chute, and between these tracks, was a water crane, from which engines obtained water. The repair track would hold 14 or 15 cars, and they were placed thereon for the purpose of being repaired. One Johnson was defendant's foreman in these yards, and had charge of the men at work therein. He had what is called “shanty”--we suppose, an office or headquarters--on the south side of an icehouse, which was south and east of the coal chute, and in passing from the coal chute to his shanty one had to cross the coal, repair, and two other tracks, which ran down toward the turntable. Plaintiff, Hughes, was in defendant's employ as a car repairer. His duties were to repair cars set in upon the repair track, which were subject to be moved as fast as repaired, and also to repair cars under the direction of his foreman upon any and all tracks in the defendant's yards. He was or might be required to repair cars while in transit upon any of the main line tracks in the yard, and was at all times subject to Johnson's orders with regard thereto. Indeed, cars which were partially repaired while on the repair track were often followed onto other tracks by Johnson's order, and the repairs completed while the car was in other parts of the yard. Plaintiff owned his own tools, he being, as we understand it, a carpenter, and with the defendant's consent he kept them in the east end of the coal chute, which he called his “shanty.” He was required to go to work at 7 o'clock in the morning, and was expected to go each morning to Foreman Johnson's shanty to get his orders. His work, at times at least, necessarily subjected him to the perils incident to the movement of cars, engines, and trains, as he was frequently working and moving about them while they were in motion.
On the morning of November 5, 1902, plaintiff reported to Johnson at about 7 o'clock as usual, and was directed by him to put some linings in a car which stood on the repair track, to do it as quickly as possible, and, if he could not finish before the car was pulled out, to follow it out into the yards. He immediately proceeded northward toward his “shanty,” crossing the tracks between the icehouse and the coal chute. As he went he noticed there was no engine upon the coal track. One Lang was a co-employé of plaintiff, who kept his tools at the same place, and who was to assist in the work of repairing the car. Lang was at the shanty in the coal chute when plaintiff, Hughes, arrived there, and he (Hughes) told Lang what the orders were. After plaintiff had secured his tools and was ready to start south to the repair track, he noticed that an engine had pulled up on the coal track, and was standing just south of the southeast corner of the coal chute taking water from the water crane. This engine was headed west, but had backed east from the coal chute, where it had been “coaled,” to the water crane, in order that the tender might be filled with water. The engineer was at his accustomed place on the right side of the engine cab; and as plaintiff started to go toward the repair track he noticed the engineer, and the jury was justified in finding that the engineer saw the plaintiff as he came up to the engine and started to go west between it and the coal chute. As the engine was in plaintiff's way, he proceeded westward along the side of the engine, intending to pass between it and the coal chute, and, having gone around the engine, pass directly south to the repair track; but unfortunately, in attempting to pass between the coal chute and the engine, the engine was started without warning, and plaintiff was caught between a projecting beam or sill of the coal chute and the bumping beam or projection on the front of the engine, and received the injuries of which he complains. The way which plaintiff took was a much-traveled one, and he had gone through it, as he said, as much as 50 times a day. Other employés had frequently passed through the same place, with engines in practically the same situation. A rule of the defendant company provided that “the engine bell must be rung when an engine is about to move.”
The negligence charged is (1) the starting of the engine without giving any signals or warning that it was about to move; (2) failure of the engineer to look before starting his engine to see if plaintiff was out of danger; and (3) the willful wrong of the engineer in starting the engine without giving a signal or looking to see if plaintiff was out of danger. Defendant's answer was practically a general denial.
The trial court instructed as a matter of law that plaintiff's case came within the provisions of section 2071 of the Code, to which we shall hereafter refer, and also gave the following: These are complained of, and it is also contended that plaintiff was guilty of such negligence contributing to his injury that he cannot or should not recover. These are the ultimate points relied upon for a reversal, although they are presented in many ways and in different aspects.
Section 2071 of the Code reads as follows: “Every corporation operating a railway shall be liable for all damages sustained by any person, including employés, in consequence of the neglect of the agents or by any mismanagement of the engineers or other employés thereof, and in consequence of the willful wrongs, whether of omission or commission, of such agents, engineers or other employés, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed.”
There is no doubt that plaintiff was injured by a moving engine; hence the wrong, if any there be, was connected with the use and operation of a railway. But it is contended that plaintiff's employment was not such as subjected him to the hazards peculiar to the use and operation of railways; in other words, that he did not belong to the class of employés intended to be protected by this statute. The mere fact that plaintiff was called a car repairer does not assist in any way in the solution of this question. The test is, does the duty of the employé, no matter what his designation, require him to perform services which expose him to the hazards peculiar to the business of operating a railway? If it does, he is entitled to the protection of the statute. Pyne v. Railroad, 54 Iowa, 223, 6 N. W. 281, 37 Am. Rep. 198;Williams v. Railroad (Iowa) 96 N. W. 774. Accordingly it has been held that water carriers, snow shovelers, private detectives, mechanics in shops, car inspectors, clinker men, coach cleaners, track repairers, section hands, and other like employés, who from the nature of their employment or in the performance of their duties are exposed to the hazards of moving cars, are within the statute. See Keatley...
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