Lammars v. Chicago Great Western R. Co.

• Decision Date: 20 November 1913
• Citation: 143 N.W. 1097,162 Iowa 211
• Parties: WILLIAM LAMMARS, Appellee, v. CHICAGO, GREAT WESTERN RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

143 N.W. 1097

162 Iowa 211

WILLIAM LAMMARS, Appellee, v. CHICAGO, GREAT WESTERN RAILROAD COMPANY, Appellant

Supreme Court of Iowa, Des Moines

November 20, 1913

Appeal from Dubuque District Court.--HON. ROBERT BONSON, Judge.

ACTION to recover damages for injuries received by plaintiff while unloading rails from a car. The facts are more fully stated in the opinion. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.--Reversed.

Reversed and Remanded.

Carr Carr & Evans, for appellant.

Fitzpatrick & Frantzen, for appellee.

PRESTON J. DEEMER, LADD, WITHROW, and GAYNOR, JJ., concur. EVANS, J. takes no part. WEAVER, C. J. (dissenting).

OPINION

PRESTON, J.

The undisputed, or established facts are, substantially: That plaintiff was in the employ of the defendant as a member of the section crew at Dyersville, Iowa. Frank Dodds was foreman of the crew. On the morning of plaintiff's injury these men were working in the yard at Dyersville when they received orders to unload steel rails from a car in a train which had just arrived. There were four men in the crew in addition to the foreman. Plaintiff's work was along the section, track repairing, putting in rails, and work of that kind. He had nothing to do with running the train. The foreman had orders to distribute the rails at points needed, for repairing the track, and had points marked out where they should be distributed. The section men were directed by Dodds to get on the car and unload the rails. When the train moved to a point where a rail was needed, Dodds would tell the conductor, who would signal the engineer to stop the train. The rails which were to be unloaded, in connection with which work the plaintiff was injured, were loaded in a gondola car, on which there were sideboards about four feet high, constructed of two-inch plank. No work of unloading the rails was done while the train was in motion. The section men remained on the car when the train was moved from one stop to another. The train had made six or seven stops for the purpose of unloading rails, after leaving Dyersville, and had reached a point about four and one-half miles west of the town, when a stop was made to unload more rails, and where plaintiff was hurt.

The rails were unloaded from the car one at a time by the section men in the following manner: One end of the rail would be lifted above the side of the car, when one of the members of the crew would put a bar under the rail and over the top of the sideboard upon the car and hold it there, while the other men went to the opposite end of the rail to lift it up, and, when lifted, it would be rolled over the side of the car to the ground. At the time of the plaintiff's injury, sixteen or seventeen rails had been unloaded in this manner at different places. The train was stopped, and the section men started to unload a rail by lifting the west end of it up to the south side of the car. Dodds, the foreman, then put the bar under it, and the other men started for the other end. When the plaintiff had gone about two steps east, the rail came down. After the bar had been placed under it and the men had started east, Dodds, who was holding the bar which supported the rail, fearing that it was not over the side of the car far enough to hold it, attempted to push it through further, and it slipped on the bar and slid down where he could not hold it, and it fell upon the plaintiff's leg and injured him.

At the conclusion of all the evidence, the defendant moved the court to direct a verdict upon the grounds: First, that there was no negligence on the part of defendant shown; and, second, if there was any negligence which caused the plaintiff's injury, it was the negligence of his fellow servant, for which he could not recover of the defendant. The motion was overruled and the cause submitted to a jury which found for plaintiff.

Appellant contends that plaintiff and Dodds being fellow servants, in the work of unloading the rails from the car, plaintiff is not entitled to recover for the negligence of Dodds unless plaintiff's employment and the negligence, if any, on the part of Dodds, comes within the provision of section 2071 of the Code; and that the negligence, if any, on the part of Dodds is not connected with the use and operation of a railway, within the meaning of said section, the precise point being that at the time plaintiff was injured neither he nor his co-employe, Dodds, of whose wrong and negligence plaintiff complains, were engaged in work which exposed plaintiff to the hazards of moving trains, machinery, etc., on the track, or in any manner connected with such movement, and that therefore the statute does not apply to the case-made. This is really the point in the case, and substantially the only one.

Our cases are not entirely harmonious on this question. The rule seems to have been settled, but the facts in each case make it difficult, sometimes, to apply the rule. In Akeson v. Railway, 106 Iowa 54, Mr. Justice Ladd, speaking for the court, after quoting the statute, said that: "In argument nearly all of the authorities construing the statute set out are reviewed, and it is respectively contended that, under previous decisions, this case falls within and without its purview. For the purpose of determining this controversy, and in order to deduce a rule, if possible, in harmony with the meaning of the Legislature, we shall consider somewhat in detail what has heretofore been said in construing this statute."

The decisions of our own court up to that time were reviewed, and those in some other jurisdictions. The change in the statute under which the earlier cases were decided was pointed out. The constitutional objections to the statute, unless limited to employees engaged in the hazards of operating railroads, were discussed. It was shown that, with one exception, a recovery has not been permitted in any case in this state where the wrongful act causing the injury was not occasioned by the actual movement of trains, cars, or machinery on the track (or in connection therewith), but that the holdings in numerous cases were that, although the complainant was engaged in (other) railroad work, recovery was not allowed. The exception referred to is that of Smith v. Railway, 78 Iowa 583, where it was held that, under the facts there shown, plaintiff was injured while engaged in work connected with the movement of the train and therefore within the statute. After considering all these cases, the rule was announced as follows: "If, then, the injury is received by an employee whose work exposes him to the hazards of moving trains, cars, engines, or machinery on the track, and is caused by the negligence of a co-employee in the actual movement thereof, or in any manner directly connected therewith, the statute applies, and recovery may be had. Beyond this the statute affords no protection." The opinion further says that the peculiarity of the railroad business, which distinguishes it from any other, is the movement of vehicles or machinery of great weight on the track, by steam or other power, and the dangers incident to such movement are those the statute was intended to guard against. That holding has not been changed in any of our later cases, but has been re-affirmed. It is the rule generally adopted in other jurisdictions having a similar statute. 26 Cyc. 1370 (B); 18 L.R.A. 478, note.

Having announced the rule and adhered to it, it should not be departed from unless there are weighty and sufficient reasons for doing so. It is not meant by this that we are to blindly follow precedent in all cases, but there ought to be stability in the decisions in order that the profession and litigants may know what the rules are. We are content with the rule laid down in the Akeson case, and shall not again review the cases prior to that decision or repeat the reasons therefor. The Iowa cases on this subject, decided since that case, to which our attention has been called, and where a recovery was permitted, are: Jensen v. Railway, 115 Iowa 404; Stebbins v. Railway, 116 Iowa 513; Williams v. Railway, 121 Iowa 270; Cahill v. Railway, 148 Iowa 241; Russell v. Railway, 141 N.W. 1077.

In all those cases the injury was in some manner connected with the movement of trains or machinery. In the following cases decided since the Akeson case, no recovery was permitted: Reddington v. Railway, 108 Iowa 96; Dunn v. Railway, 130 Iowa 580; Slaats v. Railway, 149 Iowa 735. In the Reddington case and the Slaats case the holding in Akeson v. Railway was approved, although in the Slaats case Mr. Justice Weaver in his dissent was of opinion that the facts brought that case within the holdings of prior decisions. There are numerous cases in other states under statutes similar to, but not exactly like, ours, where the question has arisen whether loading or unloading cars is an operation of the railroad within the meaning of the statute. In some cases it has been held that such employment is within the contemplation of the statute. Atchison Railroad v. Koehler, 37 Kan. 463 (15 P. 567); Atchison Railroad v. Brassfield, 51 Kan. 167 (32 P. 814); Chicago, etc., Ry. v. Pontius, 157 U.S. 209 (15 S.Ct. 585, 39 L.Ed. 675). These cases were decided under the Kansas statute which is substantially the same as the Iowa statute of 1862 (Laws 1862, chapter 169), before it was changed, and is broader than our present statute. The Kansas statute is set out in the Pontius case, supra. In Daley v. Railway, 147 Mass. 101 (16...