Malone v. Burlington, Cedar Rapids & Northern Railway Co.

• Decision Date: 14 June 1883
• Citation: 16 N.W. 203,61 Iowa 326
• Parties: MALONE v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY CO
• Court: Iowa Supreme Court

16 N.W. 203

61 Iowa 326

MALONE v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY CO

Supreme Court of Iowa, Des Moines

June 14, 1883

Appeal from Linn District Court.

ACTION to recover for a personal injury. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

REVERSED.

J. & S K. Tracy, for appellant.

Blake & Hormel and J. B. Young, for appellee.

OPINION

ADAMS, J.

The plaintiff was employed to wipe defendant's engines and to do some other work in and about the defendant's round-house. One of his duties was to open the doors of the round-house and allow the engines to pass in and out, and to shut the doors afterward. These doors, it seems, were large weighing several hundred pounds. At the time of the accident in question, the plaintiff and two other employes were endeavoring to shut them. There had been an accumulation of snow and ice, which obstructed the doors and made it difficult to shut them. The plaintiff and his co-employes had succeeded in shutting one, and while endeavoring to shut the other, one of the plaintiff's co-employes pryed it up with an iron bar, thinking thereby to be able to crowd it over the accumulated snow and ice. Unfortunately, however, he pryed it so high as to lift it from its hinges, and it fell upon the plaintiff, producing the injury of which he complains.

The defendant insisted upon the trial that the case came within the common law rule in respect to an injury resulting from the negligence of a co-employe. It accordingly asked the court to instruct the jury that, if the plaintiff's duties "did not require him to undergo the dangers and hazards of actually operating the road, trains, cars and engines of the railroad company," he could not recover. The court refused to so instruct, and instructed in substance that, if the plaintiff's duties were to open and close the double doors extending across the track and, while closing one of the doors after the admission of an engine into the round-house, other employes acting with him conducted themselves so negligently as to throw one of the doors off its hinges, whereby the plaintiff was injured without any fault on his part, he would be entitled to recover. The giving of this instruction is assigned as error.

Section 1307 of the Code allows employes of railway companies to recover against the companies for injuries received from the negligence of co-employes, where the "wrongs are in any manner connected with the use and operation of the railway." The plaintiff insists that the negligent act of throwing one of the doors of the round-house from its hinges was connected with the use and operation of the railway.

There is very little, if any, railway service that is not connected, at least in some remote sense, with the operation of the road. This is so in the case of makers and repairers of cars and engines. Yet no one would claim that the company would be liable for an injury to an employe in such work from the careless use of tools or...