Melody v. Des Moines Union Railway Co.
| Decision Date | 13 May 1913 |
| Citation | 141 N.W. 438,161 Iowa 695 |
| Parties | THOMAS F. MELODY, Appellee, v. THE DES MOINES UNION RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
ACTION at law to recover damages for personal injury alleged to have been occasioned by the negligence of the defendant. There was a verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
Guernsey Parker & Miller, for appellant.
Thomas A. Cheshire, for appellee.
The defendant was operating a line of railway in the city of Des Moines, and plaintiff was employed in its service as switchman. There is evidence tending to show that for a period of two to three weeks prior to the accident, considerable quantities of snow and ice had accumulated in and upon the switching ground where plaintiff worked. At the place in question, and just outside of the track, a ridge of snow had formed or accumulated presenting a surface sloping toward the rail. Owing to the effect of steam from passing engines and the freezing weather which prevailed, this sloping surface had become icy. There was also evidence to the effect that there was hardened snow or ice upon the footboard or step of the switch engine operating in the yard. In the performance of plaintiff's duties as switchman, it became necessary to move certain cars from one location to another, and for this purpose he caused the engine to be backed to the east upon one track where it was coupled to two cars, and run thence westward past the "lead switch." At this point plaintiff dismounted from the engine to throw the switch to allow the cars to be set back to the eastward upon another track. The switch being then thrown and the engine and cars being in motion toward the east, plaintiff attempted to mount the footboard, and in so doing his left foot slipped on the sloping ice ridge, while his right foot, which had been lifted to the footboard, slipped on the ice there accumulated, with the result that his grip upon the handhold, which he seized to assist his movement, was broken and he fell in such manner that his leg was crushed under the wheels of the locomotive or of the car attached thereto.
In this action he charges the defendant with negligence in failing to supply him with a safe place to work, in permitting snow and ice to accumulate in the yard and upon the footboard of the locomotive to the peril of switchmen in the performance of their duties, and in failing to remedy or remove such dangerous conditions. The defendant denies the charges of negligence and pleads contributory negligence and assumption of risk by the plaintiff.
It was the theory of the plaintiff upon the trial below that the case made by him brings him within the benefits of the recent legislation embodied in chapters 124 and 219 of the Acts of the Thirty-Third General Assembly. The trial court adopting this view did not submit to the jury the defendant's plea of assumption of risk, and instructed, in effect, that, if plaintiff had in other respects shown himself entitled to recover, contributory negligence, if any, on his part would operate only as a partial defense by which his damages should be diminished in proportion to the amount of negligence fairly attributable to him. The jury found for the plaintiff, and, from the judgment rendered on the verdict, defendant has appealed.
Various errors are assigned, but we shall confine our discussion of the case to the two or three propositions to which counsel have given chief attention in argument. Of other points made we have to say that a careful review of the record reveals no reversible error.
I. It is said that the evidence discloses no negligence on the part of the defendant. Upon this issue we are disposed to hold that the case was one for the jury. A switch yard is a switchman's place of work. The nature of his duties requires him to traverse the yard in almost every direction, both day and night. Much of his movements has to do with the making up of trains, the coupling, uncoupling, assembling, and distribution of cars. He must move with celerity. The service is at best essentially dangerous, and he must be ever alert of eye and of ear to avoid being run over or caught and crushed between cars. He cannot always take careful note of his footsteps to make sure of his path, and within reasonable limits he must and rightfully may rely upon his employer to see that there are no traps or pits or obstructions into or over which he may fall to his injury, save only such as pertain to the proper and necessary preparation and equipment of the yard for its intended use. True, a railway company having no control over the laws of nature is not negligent simply because snow falls upon its yards; but, snow having fallen thereon, we cannot say, as a matter of law, that the company may without neglect of duty-leave it there indefinitely and permit it to become worn or trodden into icy mounds, ridges, and slopes at places where its switchmen are required to go in the performance of their work, thus exposing them to the danger of slipping and falling to their serious injury. The duty of the employer is to exercise reasonable care to provide his employees a safe place to work, and is no less applicable to a switch yard than to a machine shop. True, the phrase "safe place to work" is a relative one. It does not mean the absolute elimination of all danger, but it does mean the elimination of all dangers which the exercise of reasonable care by the employer would remove or guard against. In the case before us it sufficiently appears that the conditions of which plaintiff complains were not the result of falling snow alone, but also of the use which had been made of the yard by the defendant whereby the surface of the yard became uneven, hard, and slippery. Whether reasonable care on defendant's part would have prevented this source of danger or caused its removal before the plaintiff's injury is a question of fact and not of law.
II. Chapter 124 of the acts of the Thirty-Third General Assembly is amendatory of Code, section 2071. As amended, said section now reads as follows:
Every corporation operating a railway shall be liable for all damages sustained by any person, including employees of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employees thereof, and in consequence of the willful wrongs, whether of commission or omission, of such agents, engineers, or other employees, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding. Nor shall any contract of insurance, relief, benefit or indemnity in case of injury or death, entered into prior to the injury, between the person so injured and such corporation, or any other person or association acting for such corporation, nor shall the acceptance of any such insurance, relief, benefit, or indemnity by the person injured, his widow, heirs, or legal representatives after the injury, from such corporation, person, or association, constitute any bar or defense to any cause of action brought under the provisions of this section, but nothing contained herein shall be construed to prevent or invalidate any settlement for damages between the parties subsequent to injuries received. In all actions hereafter brought against any such corporation to recover damages for the personal injury or death of any employee under or by virtue of any of the provisions of this section, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier or corporation of any statute enacted for the safety of employees contributed to the injury or death of such employee; nor shall it be any defense to such action that the employee who was injured or killed assumed the risks of his employment.
It is the claim of plaintiff, and was so ruled by the trial court that, if the allegations of fact in the petition are supported by the evidence, the statute above quoted is applicable. Appellant takes issue with this proposition. The objection, if we understand counsel, is substantially as follows: That this statute is intended to abolish the fellow-servant rule in favor of a certain class of railway employees, and that the rights created by the statute and its various amendments are available only in cases...
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Melody v. Des Moines Union Ry. Co.
... ... There was a verdict and judgment for plaintiff, and defendant appeals. Affirmed.[141 N.W. 438]Guernsey, Parker & Miller, of Des Moines, for appellant.Thomas A. Cheshire, of Des Moines, for appellee.WEAVER, J.The defendant was operating a line of railway in the city of Des Moines, and plaintiff was employed in its [141 N.W. 439]service as switchman. There is evidence tending to show that, for a period of two to three weeks prior to the accident, considerable quantities of snow and ice had accumulated in and upon the switching ground where plaintiff ... ...