Johnson v. Minneapolis & St. Louis Railroad Co.
| Decision Date | 17 November 1917 |
| Docket Number | 31399 |
| Citation | 165 N.W. 51,183 Iowa 101 |
| Parties | E. H. JOHNSON, Administrator, Appellant, v. MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 15, 1918.
Appeal from Webster District Court.--R. M. WRIGHT, Judge.
ACTION at law to recover damages on account of the alleged wrongful injury and death of plaintiff's intestate. There was a directed verdict and judgment for defendant, and plaintiff appeals.--Reversed and remanded.
Reversed and remanded.
E. H Johnson, and Kenyon, Kelleher & Price, for appellant.
Burnquist & Joyce, for appellee.
The deceased was a bridge carpenter, working at his trade in the defendant's employment, in the construction of a bridge upon its line of railway. At the time in question, he, with a fellow workman, was engaged in boring auger holes through braces at the cap timbers resting upon the piles which supported the structure. To do this work, it was necessary for the workmen to occupy a position beneath the ties which support the track. To meet this need, a plank somewhat longer than the width of the bridge was suspended under the upper structure, and held in place by two iron hangers made for that purpose, and looped over or suspended from opposite ends of one of the crossties. The device was moveable, and was changed from place to place as needed in the progress of the work. On February 24, 1913, the deceased was in his place, upon the scaffold thus constituted, boring a hole in a brace on the east side of the bridge, and his companion, Johnson, was similarly engaged on the west side. Johnson was evidently first to complete the hole which he was boring, and climbed from the plank to the top. As he did so, the iron hanger on that side slipped from the end of the tie on which it was hung, causing the plank to fall and draw out of the hanger on the other side, precipitating Karlson to the ground below, and causing his death.
This action is brought by the administrator of Karlson's estate, to recover damages on account of his death, for the benefit of his parents. The facts, so far as we have already recited them, are undisputed. Plaintiff charges, however, that the injury and death of his intestate was caused by the negligence of the defendant, and specifies the alleged negligence as follows: (1) That defendant negligently adopted an unsafe plan and method of work; (2) that it negligently supplied deceased's fellow workman, Johnson, with a defective hanger, by reason of which it fell from the tie, causing the accident; (3) that defendant's foreman saw and knew the defective condition of the hanger, and failed to do anything or to take any measures to prevent accident therefrom; also, that defendant was negligent in permitting Johnson to use the hanger; (4) That defendant failed to furnish deceased a reasonably safe place to work; and (5) that Johnson, the fellow workman of the deceased, was negligent in his manner of leaving the scaffold, causing it to sway, vibrate, and fall, and that such negligence is imputable to the defendant.
The defendant denies all allegations of negligence on its part, and in various forms pleads that the risk of injury and death in the manner described was assumed by the deceased. It further pleads that its railway was, at the time, engaged in the business of interstate commerce, and that the work on which deceased was employed was of that character.
The hanger, which, the evidence tends to show, was ordinarily used in work of the kind described, is made by taking a strap or bar of iron, and bending it into a shape having some resemblance to an elongated letter U, the bottom part of which is made broad enough to let in the plank which is to serve as a scaffold. On the upper end of each of the parallel uprights of the hanger, a thread is cut to receive a nut. These ends pass through holes in another flat bar of sufficient length to fit over them, and when this crossbar is secured by the nuts on the ends of the uprights, the device is complete. When hung in place to receive the plank, the crossbar rests on the upper face of the tie, which, in the present case, was sawed smooth. The hanger on Karlson's side of the bridge was of the usual kind, which we have here attempted to describe. The one on the opposite side of the bridge, where Johnson worked, was different in the following respect: the upright bars, instead of being finished at the top with threads and nuts and crossbar, were each bent or turned over to make an eye, and through these eyes, a round bolt of sufficient length was inserted, and made to serve the purposes of a crossbar. The evidence further tends to show that this bolt did not fit tightly in the eyes, but was loose, and when in place, was liable to roll on the face of the tie; and this is one of the facts upon which the charge of negligence on the part of defendant is founded. Another condition complained of in this connection is the following The plan of the bridge contemplated the fastening of wooden guard rails outside of and parallel with the track across the top of the ties, and within about four inches of their ends on either side. In the regular and usual course of construction, these guard rails are not laid until after the work of boring and fastening the braces has been done. In this instance, however, owing to some delay or confusion in supplying the materials, the guard rails were put in place first, with the result that, when Karlson and Johnson were ordered to bore the braces, there were only about four inches of either end of the ties on which to suspend the hangers. When deceased and Johnson began boring the holes, they did not use the hangers, but in place thereof, extended a plank across the caps resting on the piles, and from the plank reached the braces with their augers. They had worked in this manner for a time, when the assistant foreman, who was in immediate charge and oversight of their labor, directed them to use the hangers. This order was twice given. The tools and implements for the use of the workmen were kept on a platform made for that purpose at the end of the bridge, and there Karlson and Johnson obtained these hangers, which, according to the apparent preponderance of the evidence, were the only ones furnished at that place; though there is evidence tending to show that there were others in one of the cars left at the station of Arnold, some distance away. Up to that time, no use had been made of hangers in the construction of the bridge, and they had been in use on this occasion not more than an hour or two when the scaffold fell. Whether the hangers were both carried from the platform to the place of work by one man, or whether each carried the one he was to use, does not appear. When in their respective places on the plank, Karlson and Johnson were separated by the width of the bridge, a distance of eight feet or more, and they continued in this relative position as the work moved forward from bent to bent along the length of the structure, neither having any special reason to examine the work of the other or the condition of the hanger used by him, unless it be as they moved the scaffold from one bent to another, of which there is testimony. There was also testimony indicating that two other persons assisted in the moving. No evidence appears that Karlson's attention was called to the fact that the crossbar or bolt on the hanger used by Johnson was loose in the eyes through which it was placed, but it is the contention of defendant that, as a matter of law, he must have known it, or, in the exercise of reasonable care, he ought to have known it. The testimony of the defendant's foreman, who directed the use of the hangers, is to the effect that the natural swaying and vibration of the suspended plank tended to make the top of the hanger work outward toward the end of the tie, a tendency which would naturally be more marked where the crossbar is in the form of a roller than where it is in the form of a flat and rigid bar. That it was the roller-top hanger which fell is shown without controversy, for the one on Karlson's side was found after the accident to be still in place. No appliance was furnished the workmen to tie or hold the hangers in place, though the chief foreman testifies that, on different occasions, he had told Karlson to drive nails in the ties outside of the crossbar of the hangers to hold them in place; but, so far as relates to the hanger used by Karlson on this occasion, his omission so to do appears to have had no connection with his fall, because, as we have seen, that hanger did not leave the tie. One other witness says that, at some point in the work before reaching the place of the accident, he noticed that the end of the tie on which Johnson's hanger was suspended was unusually short, leaving only about two and one-half to three inches outside of the guard rail, and, thinking it a source of danger, he said to Karlson, "There ought to be a nail outside of this hanger;" but as this advice, if given, seems to have had reference to the danger...
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