Kempe v. Ill. Cent. R. Co.

Decision Date21 October 1930
Docket NumberNo. 40477.,40477.
Citation232 N.W. 657,211 Iowa 812
PartiesKEMPE v. ILLINOIS CENT. R. CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Cherokee County; C. C. Bradley, Judge.

Action at law to recover personal injury damages alleged to have been sustained by the plaintiff while an employee of the defendant railroad company. Suit is brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). A motion for a directed verdict in behalf of the defendant was sustained, and plaintiff appeals. The facts appear in the opinion.

Affirmed.

Claud M. Smith, of Cherokee, for appellant.

Molyneux, Maher & Meloy, of Cherokee, and Helsell, McCall & Dolliver, of Ft. Dodge (E. C. Craig, of Chicago, Ill., of counsel), for appellee.

GRIMM, J.

On November 8, 1929, the plaintiff filed his petition in the Cherokee county, Iowa, district court, whereby he sought to recover from his employers, the Illinois Central Railroad Company, the sum of $10,000, for personal injury damages alleged to have been sustained on the 27th day of July, 1929, while the plaintiff was working with other employees of the defendant company at a railroad siding near the city of Cherokee, Iowa, loading railroad rails on a flat car. It is claimed the plaintiff at that time received an injury to his back and spine, vertebræ, and some injuries to the muscles surrounding the same.

Briefly stated, the facts are that on the day in question, and for years prior thereto, the plaintiff had been a section foreman in the service of the defendant company. He had worked for the company in section work for about eight or nine years. On the day in question he was directed by a superior officer to report with his men at Carney's siding near the city of Cherokee, Iowa. A similar order had been given to several other section foremen. A pile of railroad rails was lying near the company's railroad track at this siding. The company desired to have them loaded on a flat car. They were what is known in the language of railroading as “sawed rails,” which means that, at some time prior to the date of the incident in question, damaged ends of these rails had been sawed off. They were, therefore, slightly shorter and lighter than the ordinary rails. They were what is known as 75-pound rails; that is to say, they weighed 75 pounds to the yard, in length.

In order to facilitate the loading of the rails, there was produced by the company what is known as a “dolly.” This was a concaveroller device upon which the rails were pushed up over the end of the railroad car. What is known as “rail tongs” are used in handling rails. These tongs resemble ordinary ice tongs, except that the handles are long and extend at approximately right angles to the shaft, at the lower end of which shaft there are clamps which fit over either the ball of the rail if the rail is being carried top up, or over the bottom flanges of the rail if the rail is being carried upside down. These tongs are so constructed that they cannot be used by one man in lifting. One man can, by taking hold of each handle or arm of the tongs, engage the tongs on the rail, but in lifting there must be force applied to each arm of the tongs or they will slip off.

In the process of loading the rails, as the upper end comes on to the car, two men apply the tongs at the upper end and proceed to lift and pull the rail up the dolly. The plaintiff and one Jenkins were on the flat car using a pair of tongs between them, which they applied farther back on the rail. In the first tier of rails the bottom of the rail was laid flat on the top of the flat car; the second tier of rails was placed upside down, so that the ball of the rail extended down between the balls of the rails of the first tier. The third tier was placed as the first one, and the fourth tier as the second. The work was begun about 10 o'clock in the morning; an hour was taken for lunch, and it is claimed by the plaintiff that the accident occurred at 2 o'clock in the afternoon. At this time it is claimed they were loading the fourth tier of rails. Seventy-five or eighty rails had been placed on the car. According to plaintiff's undisputed testimony in the case, these rails, as they were being pulled up over the end of the flat car, wedged, more or less, in between the ends of the rails already loaded, so that it was necessary, as the work was being done, to pull them loose. The plaintiff claims while he was thus engaged he received the injury of which he complains.

Originally the charge of negligence against the defendant was, briefly stated, a failure on the part of the defendant company to furnish a power hoist or derrick to do the work. On the day of the trial an amendment was filed, which stated plaintiff's cause of action in the following terms: “By the said Sam Jenkins then and there failing and neglecting to do his share and proportion of the lifting of the said rail in question, then and there at said time and place in the process of being loaded, and by then and there causing the said Jenkins' proportionate share of the weight of the said rail to be unexpectedly shifted upon this plaintiff, and by then and there, thereby overtaxing the strength of this said plaintiff, and thereby causing the injury to plaintiff's back herein complained of, and the injury and damage resulting therefrom.”

It is claimed the injury occurred about 2 o'clock in the afternoon, and the crew, including the plaintiff, continued, in the usual way, in the loading of the rails until the work was completed, about 3 o'clock on the same afternoon. Approximately 45 rails were loaded after the alleged injury, during which loading the plaintiff continued to work as he had previously done. He remained in the service of the company from July 27, 1929, the date of the accident, until August 23, 1929, when he left to secure treatment in the defendant's hospital in Chicago. He left Cherokee for the hospital on August 23d, but did not enter the hospital until August 30th, having spent, as he claims, one week with his brother in Chicago previous to entering the hospital.

At the close of plaintiff's evidence, the defendant filed a motion for a directed verdict on seven grounds, which motion was sustained. The appellant presents six grounds for reversal.

I. The appellant contends that the court erred in holding that the plaintiff herein, under all the facts and circumstances as shown by the record, assumed the risk of said injury by not quitting his job and employment with the defendant company “when confronted with the way and manner of loading the rails in question in this case.” In other words, the appellant contends the court erred in holding that the plaintiff assumed the risks incident to loading the rails by hand when he discovered the power hoist was not to be used. The plaintiff knew before the beginning of the work that a power hoist would not be used. Moreover, the evidence, without conflict, shows that, while power hoists had occasionally been used in loading large quantities of rails, yet nevertheless the usual and customary manner of loading rails, such as were being loaded at this time, was the manner used by the company on this occasion. The plaintiff had frequently participated in the loading of rails by hand, as was done at this time, and only on one or two occasions had the hoist been used in the work of loading rails when the plaintiff was present.

While, as the plaintiff contends, a power hoist would have been a proper device for loading these rails, nevertheless, by the plaintiff's own evidence, it clearly appears that for many years it had been customary, wherever the plaintiff had worked, to load rails by hand by the process in use on this occasion. There is no evidence whatever that the method in use was an improper method, or that the failure on the part of the company to use a hoist was negligence.

[1][2] Under all the facts as disclosed in this case, there was no negligence shown on the part of the company by reason of having the work done by hand, rather than by a power hoist. The plaintiff was thoroughly familiarwith this method of handloading and knew and fully appreciated all the dangers, if any, incident to the work, and he assumed whatever risk there was in thus doing the work.

II. The appellant next contends that the court erred in holding that the plaintiff assumed the risk of the injury of which he now complains. It will be noted that the plaintiff had been in the service of the defendant company for approximately nine years, during more or less of all of which time he was familiar with the method of loading rails employed on the day in question. He was thoroughly familiar with rail tongs and the manner of using them long before the beginning of the work on the day in question. Moreover, he had continued in doing exactly the same work, in exactly the same way, for three hours before the incident, of which he complains. Seventy-five or more rails had been loaded, and, in each case, he and his companion, Jenkins, had done exactly what they were doing at the time the plaintiff claims he was injured. According to his own uncontradicted testimony, the greater number of the rails, which had been loaded prior to the accident, had stuck in the same manner the one stuck, of which he complains, and he and Jenkins had released the stuck rail by pulling and lifting, as they did in this particular case. All of this is definitely proven by the plaintiff's own testimony. To set the same out would unduly extend this opinion.

The plaintiff claims that he was injured because his working companion, Jenkins, on the other side of the rail tongs, did not lift enough. The language of the amendment to the petition is: “By the said Sam Jenkins then and there failing and neglecting to do his share and proportion of the lifting of the said rail in question * * * causing the said Jenkins' proportionate share of the weight of the said rail to be unexpectedly shifted upon this...

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