Katcher v. Heidenwirth

• Decision Date: 13 November 1962
• Docket Number: No. 50694,50694
• Citation: 118 N.W.2d 52,254 Iowa 454,6 A.L.R.3d 1293
• Parties: , 6 A.L.R.3d 1293 Paul N. KATCHER, Plaintiff, v. Max R. HEIDENWIRTH, d/b/a Greene Farm and Agricultural Company, Appellee, and Chicago, Rock Island and Pacific Railroad Company, Appellant.
• Court: Iowa Supreme Court

Page 52

118 N.W.2d 52

254 Iowa 454, 6 A.L.R.3d 1293

Paul N. KATCHER, Plaintiff, v. Max R. HEIDENWIRTH, d/b/a Greene Farm and Agricultural Company, Appellee, and Chicago, Rock Island and Pacific Railroad Company, Appellant.

No. 50694.

Supreme Court of Iowa.

Nov. 13, 1962.

Harvey J. Carter, Clarksville, and A. B. Howland, B. A. Webster, Jr., and Allen Perrier, Des Moines, for appellant.

Westfall, Laird & Burington, Mason City, and Shepard & Shepard, Allison, for appellee.

LARSON, Justice.

On November 9, 1959, Paul M. Katcher, a railroad section laborer, brought an action against the Chicago, Rock Island and Pacific Railroad Company, hereafter called the company, and Max R. Heidenwirth, doing business as Greene Farm and Agricultural Company, hereafter referred to as Heidenwirth, for damages of $100,000 for personal injuries sustained on February 11, 1959, when the box of a dump truck operated by Heidenwirth's employee Clapham was lowered upon plaintiff while he was in the act of pounding loose sticking snow from the truck box. The plaintiff alleged that under the Federal Employers' Liability Act the company, as lessee of Heidenwirth's men and equipment, was responsible for the negligence of Clapham, and pleaded common law negligence against Heidenwirth and Clapham. Katcher demanded a jury trial.

Defendants both answered and filed crossclaims against each other, but neither then demanded a jury trial. On November 30, 1960, before trial, the railroad company paid Katcher $10,000 for a full and complete release of all claims and demands against the defendants. Heidenwirth declined to participate in the settlement and, when the company amended its cross-petition on March 6, 1961, setting up the settlement with Katcher and prayed full indemnity from Heidenwirth or in the alternative contribution of one half the settlement, the cause was assigned for trial without a jury.

On March 10, 1961, Heidenwirth filed a motion for trial of the remaining issues between defendants before a jury. This motion was resisted by the railroad and, pursuant to a hearing thereon, the court in a written ruling held that, while Heidenwirth was not as a matter of right entitled to a jury trial, under court discretion it was granted.

From the record we learn that at the company's request Heidenwirth rented it a dump truck and an end loader with operators, at a fixed price per hour for each, to perform the work of removing snow from the station platform and grounds at Greene, Iowa, and that Katcher was injured while overseeing and helping in that operation. When both parties had rested, the company's motion for a directed verdict for full indemnity was overruled, and the court submitted the case to the jury upon four interrogatories. They were, in substance: (1) Did the evidence disclose that Clapham was negligent in lowering the box of the dump truck at that time and place? (2) Was Katcher guilty of contributory negligence? (3) Was Clapham's act the proximate cause of plaintiff's injury? (4) Were Heidenwirth's employees at that time the company's employees? The jury answered that Clapham was Heidenwirth's employee at the time of the injury, was not guilty of negligence which was the proximate cause of Katcher's injury, and that Katcher was guilty of contributory negligence. Judgment was entered on the special findings dismissing the company's cross-claim against Heidenwirth, and the railroad company appealed. Appellant states the legal questions presented in this appeal are: (1) Did the evidence disclose that Heidenwirth's employee Clapham was negligent as a matter of law? (2) Was the court justified under the record in granting Heidenwirth a jury trial of the issues? (3) Was the company's pleading in answer to Katcher's petition relating to contributory negligence admissible in this trial of cross-claims? (4) Did the court properly instruct the jury in light of the company's requests and objections timely filed? We consider those argued.

Perhaps, due to the different sources of liability applicable to the parties, the settlement by the company alone, and its demand for indemnity or contribution from Heidenwirth, made the case appear somewhat complicated. There is, however, no dispute as to the reasonableness of the company settlement with Katcher, and the company now limits its claim to indemnity only, which somewhat narrows the issues. We think the evidence fully sustains the jury's findings and that the judgment of the trial court was correct.

I. Under the Federal Employers' Liability Act contributory negligence of the injured employee suing the railroad is not a defense, but goes only to mitigation of damages. Federal Employers' Liability Act, § 1, 45 U.S.C.A. § 51. On the other hand, under state law contributory negligence of the injured party would bar recovery in such a tort action. For exceptions not here involved, see Rule 97, Iowa Rules of Civil Procedure, 58 I.C.A.; Mast v. Illinois Cent. R. Co., D.C.1948, 79 F.Supp. 149. Since there was no express agreement as to indemnity between the railroad company and Heidenwirth, a determination that Katcher was contributorily negligent will be a bar to any recovery over by the railroad. Kennedy v. Pennsylvania Railroad Company (3 Cir., 1960), 282 F.2d 705, and cases cited therein. In that case a railroad employee, injured in a train derailment which occurred when the train was entering a private crossing of a steel company, recovered from the railroad company under the Federal Employers' Liability Act. The railroad sought contribution or indemnity from the steel company in a third party action on the theory of negligent crossing maintenance. It was held that recovery depended upon state law regarding the effect of the employee's contributory negligence, and that by pleading and proving same it would bar a recovery over. Substantially, this is the case before us as to the nature of the liability of each party and as to the right of indemnity. Our consideration, then, is as to the liability of Heidenwirth under state law. Of course in this matter the company, standing in the original plaintiff's stead, must assume the burden of establishing liability in Heidenwirth.

II. Cross-defendant Heidenwirth denied any negligence on his part. The company, on the other hand, contends the evidence discloses Clapham, Heidenwirth's employee, was guilty of negligence as a matter of law, and that Katcher was not guilty of contributory negligence. We are inclined to agree with appellee that under the testimony produced, the jury could have found that while the truck was empty at a place some 200 feet from the spot of the accident, Katcher, who was directing the snow removal, mentioned to the driver of the dump truck Clapham that he would get a spike maul from the tool shed about two blocks away to knock the snow out of the front end of the dump box when small tools at hand would not do the job, and that about ten minutes later, after Clapham had hauled several loads of snow to the dump spot, Katcher reappeared while Clapham was dumping a load of snow; that he was then standing four or five feet to the left of the truck and approximately eight feet back, about parallel with the rear wheels; that Clapham observed nothing in his hands and nothing was said between these men at that time, and that Clapham then had the dump box completely elevated. It could have found that the left door of the truck cab was partly open, and that Clapham was watching the snow slide out o the box and attempting to move his truck out of the snow pile by a forward and backward rocking motion; that he thought a movement of Katcher's hand was a signal to move out, and that he then pressed the lever forward to cause the box to return to the normal position; that this movement required only 4 to 5 1/2 seconds, and that Clapham did not know that Katcher was going to get underneath the box of the truck nor that he was going to attempt any act of cleaning out the sticking snow at that time. In substance, both Katcher and Clapham so testified.

It also appeared Katcher was an experienced section hand and as such would be one to appreciate a place of danger. He was acquainted with the mechanism of this truck and box, knew how it worked, and how it was controlled. The box had not been raised at his request, but was being operated in the usual manner. In this operation the dump box is raised to dump the snow and then lowered before returning for another load. Katcher must have been aware that he was entering a place of danger as he bent over the truck frame back of the cab to hit the bottom of the box with the maul. He did not advise Clapham of his purpose, although he must have known that unless Clapham was aware thereof he would in the course of his regular operation lower the box. The reasonableness of his assumption that Clapham saw the maul and knew he was going to use it then was at least a jury question. A jury could well find that an ordinarily prudent person under such circumstances would have asked Clapham to keep the box in an elevated position while he made an attempt to release the sticking snow by pounding on the box from underneath it. The jury could under these conditions find Clapham had no reason to suspect Katcher was going to enter this place of danger, and did not know of it until Katcher called out to 'Stop the box'; that in the absence of being advised he was not negligent in lowering the box in the ordinary and usual manner, and that Katcher's presence to the left and back of the truck cab indicated no intent on his part to place himself in that perilous position across the truck frame. We conclude the evidence was sufficient to justify the submission of the question of Clapham's negligence, and of Katcher's contributory negligence, to the jury, and that it sustains the jury findings on the interrogatories submitted. Johnston v. Johnson, 225 Iowa 77, 279 N.W. 139, 118 A.L.R. 233; Cable v. Fullerton...