Mace v. H.A. Boedker & Co.
| Decision Date | 11 July 1905 |
| Citation | 104 N.W. 475,127 Iowa 721 |
| Parties | CHARLES MACE, by his next friend, Appellee, v. H. A. BOEDKER & Co., Appellant |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.-- HON. M. A. ROBERTS, Judge.
ACTION at law to recover damages for a personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
McElroy & McElroy, for appellant.
Jaques & Jaques, for appellee.
It appears without dispute that defendant is an Illinois corporation, and at the time of the accident in question was engaged in grading a line of railroad for the use of another corporation in Wapello county, Iowa. In the performance of this work, defendant constructed a temporary track along the line of the grade, and operated thereon trains of dump cars moved by small engines, by which device the earth excavated from the cuts was transported and deposited upon the fills. To enable the trains to pass each other, switches and side tracks were made use of at convenient points upon the line. The plaintiff was first employed by the defendant as a water carrier or chore boy, and thereafter was put in charge of one of the switches. The work was being carried on day and night the plaintiff being on the night shift. During the night the line was illuminated to some extent by incandescent electric lights. While thus employed on or about August 16, 1902, the plaintiff had occasion to go some distance from the switch stand to procure a hoe with which to clean the dirt from the frogs, and as he returned he stepped or stumbled in such a manner that his foot was caught between the main rail and switch rail, and before he could extricate himself therefrom an approaching train ran upon or over him in such a manner as to crush his leg and necessitate an amputation. Negligence is charged against the defendant and its employes in failing to properly block the frogs and guard rails of the switch, failing to have a proper headlight upon the engine which moved the train, failing to furnish plaintiff with a lantern by which he could have signaled the engineman to stop the train, failing to stop the train upon signal of a brakeman who had discovered the plaintiff's peril, and failing to properly instruct the plaintiff as to his duties and the dangers to which he was exposed.
I. The first and principal contention of the appellant is that it is not a railway company, and at the time of the plaintiff's injury was not "operating a railway," within the meaning of Code, section 2071, and is therefore not liable to the plaintiff for any injury he may have sustained by the negligence of his co-employes. The statute referred to provides that "every corporation operating a railway shall be liable" to its employes for all damages sustained in consequence of the neglect or willful wrongs, whether of commission or omission, of the agents, engineers, or other employes of the corporation, when such negligence or wrong is in any manner connected with the use and operation of the railway. It is also further provided (Code, section 2039) that "all the duties and liabilities imposed by law upon corporations owning or operating railways shall apply to all lessees or other persons owning or operating such railways as fully as if they were expressly named therein and any action which might be brought or penalty enforced against such corporation by virtue of any provisions of law may be brought or enforced against such lessees or other persons." If, therefore, the appellant, in constructing a temporary track, and operating thereon locomotives and trains for hauling the earth used in building the grade, was "operating a railway," it follows, of necessity, that under the statute cited the fellow-servant doctrine can have no application to this case.
The usual reason advanced in justification of this class of legislation has been that persons so employed are exposed to great and unusual hazard, and in the exercise of its police power the State is justified in making special rules and regulations for their protection. The hazards against which this protection is provided do not depend upon whether the corporation is engaged in transporting passengers and freight for public accommodation. They exist wherever men are employed to move or operate locomotives and trains from place to place upon a track constructed for that purpose. The work of loading and unloading and coupling and uncoupling cars, the making up and movement of trains, the operation of switches, and all the perils which accompany the handling of these ponderous instrumentalities of transportation, are no less great because the owner of the tracks, cars, and engines is employing them in and about some private enterprise, than would be the case if he were doing similar labor by similar means in the capacity of a common carrier. This principle we have recognized in numerous decisions. For instance, it has been held that the use of a locomotive to pull a rope or cable, by which the transfer of iron rails from one car to another was accomplished, was a part of the hazardous business of operating a railroad. Stebbins v. R. R., 116 Iowa 513, 90 N.W. 355. A somewhat similar proposition was affirmed in Williams v. R. R., 121 Iowa 270, 96 N.W. 774. See, also, Nichols v. R. R., 60 Minn. 319 (62 N.W. 386). Still more directly in point is the case of McKnight v. Construction Co., 43 Iowa 406. In that case the defendant company, being engaged in the work of building a railroad for another corporation, was sued by an employe for injuries occasioned to him by the negligence of a fellow servant, in the management of a gravel train used in hauling material for the grade. There, as in the present instance, the defendant insisted that, within the meaning of the statute, it was not operating a railway, and, in pursuance of that theory, asked the court to instruct the jury as follows:
(1) . . . If you find that defendant was engaged only in the business of filling the roadbed, constructing side tracks and riprap, such business would not constitute defendant a corporation engaged in operating a railroad. (2) The mere fact that defendant used a train of cars propelled and operated by a steam locomotive for the purpose only of hauling gravel or other material to fill up the trestlework where the injury complained of took place does not prove that defendant was engaged in operating a railroad.
These instructions, it will be noticed state in apt and clear terms the substance of the rule for which appellant here contends. The trial court refused these requests, and instructed the jury as follows:
If you find that the defendant at the time of the injury complained of was operating the train on its own account for the purpose of constructing the railroad in question, then, for the purpose of this suit, it was operating a railroad. . . . If you find that the defendant at the time of the injury was operating the train in question on its own account, and that plaintiff was an employe of the defendant on said train, and that by the negligence of the defendant he was thrown from the train and injured, and that he did not by his own negligence contribute to the causes which produced his injury, then he is entitled to recover.
The plaintiff recovered judgment, and on appeal the rulings of the trial court were upheld as correct statements of the law. We think there is no logical distinction to be drawn between the rule there approved and the one applied by the district court in the trial of the case now before us. To hold with the appellant on this question is to overrule the precedent furnished by the McKnight Case, and this we are unwilling to do. The words used by Adams, J., in the opinion referred to, may well be adopted by us as applicable to the facts presented by the present record:
The defendant was not operating a railroad in the sense of doing the business for which it was designed -- the carrying of passengers and freight. It was merely running trains over it as a part of the means employed in building it. . . . If we were to throw out of consideration the spirit and object of the statute, and look only to a critical construction of its language, we might concede that it would bear the meaning which the appellant would put upon it. The Legislature, however, has seen fit, in consideration of the exceptional hazards of the business of operating a railroad, to abrogate in respect to that business the common-law rule that an employe cannot recover against his employer for an injury received through the negligence of a co-employe. The running of a special train over a railroad is operating it, in a restricted sense. For such a purpose, as well as in the general business of the road, a number of persons must be employed, each dependent for his safety upon the skill and fidelity of others. We are of the opinion, therefore, that the running of special trains over a railroad by a construction company, in constructing it, is operating the railroad, within the meaning of section 1307 of the Code of 1873.
This conclusion appears also to have the support of the better reasoned cases to which our attention has been called from other jurisdictions. Schus v. Powers-Simpson Co., 85 Minn. 447 (89 N.W. 68); Kline v. Iron Co., 93 Minn 63, 100 N.W. 681; C. K. W. R. Co. v. Totten, 1 Kan.App. 558 (42 P. 269); Roe v. Winston, 86 Minn. 77 (90 N.W. 122); Johnson v. R. R., 43 Minn. 222 (45 N.W. 156, 8 L.R.A. 419). See, also, Glandon v. R. R., 68 Iowa 457, 27 N.W. 457. In the Kline Case, above cited, the defendant was operating a narrow-gauge line, with light engines and dump cars, for the purpose of excavating and removing earth, substantially after the manner described in the present case. Under a statute not...
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