Reed v. Dickinson
| Decision Date | 14 December 1918 |
| Docket Number | 32459 |
| Citation | 169 N.W. 673,184 Iowa 1363 |
| Parties | WILLIAM REED, Appellant, v. JACOB M. DICKINSON et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--O. D. WHEELER, Judge.
ACTION brought under the Federal Employers' Liability Act, to recover damages for personal injury. Opinion states the facts. Judgment was rendered for the defendant in the court below, on a directed verdict. Plaintiff appeals.
Reversed.
Thomas O. Harrison and H. L. Robertson, for appellant.
F. M Sargent, J. G. Gamble, and Saunders & Stuart, for appellees.
I.
This action is under the Federal Employers' Liability Act, and is brought to recover damages claimed to have been sustained through the negligence of the defendant, while engaged in interstate commerce. The action is against the Chicago, Rock Island & Pacific Railway Company and its receivers.
The company answers, and denies generally and specifically every statement, allegation, matter, and thing alleged which, if true, might involve the defendant in liability, and alleges especially that it was not engaged in the operation of, nor did it have possession of, the railway property mentioned in the petition, at the time referred to; that the railway was solely and exclusively in the possession of and operated by the receivers mentioned, under appointment by the Federal court.
The receivers, answering, deny both generally and specifically every allegation of plaintiff's petition, and further answer by saying that the plaintiff assumed the risk incident to the work in which he was engaged at the time, and on account whereof he claims to have received the injuries, and further say that the plaintiff was guilty of contributory negligence, directly contributing to and causing the injuries of which he complains.
That the plaintiff received injury while in the employ of the defendants is not a controverted question here, nor is the extent of his injuries, for the reason that, at the conclusion of plaintiff's testimony, the court directed a verdict in favor of both defendants, and upon such verdict, entered judgment, dismissing plaintiff's petition.
The case, therefore, as presented here, involves but two questions:
(1) Was the plaintiff, at the time he received his injuries, engaged in interstate commerce, so as to be within the rule of the Federal Employers' Liability Act?
(2) Was the injury exclusively due to the act of the plaintiff himself,--that is, due to his own exclusive negligence; or was it due to some negligent act of the defendants, or either of them, which contributed to the injury, for which they, or some of them, ought to be called upon to respond in damages under the Federal Employers' Liability Act?
On the first question, it appears that the plaintiff was working on the main line of the Chicago, Rock Island & Pacific Railway Company, just east of Council Bluffs; that this line runs from Chicago, Illinois, to Omaha, Nebraska; and that passenger and freight trains pass over the track between these points. Just prior to the time of the injury, steel rails were being hauled over the main line, on flat cars, for distribution along the line, to be placed, when distributed, in the track, in substitution for old rails that were being removed. At the time plaintiff was injured, he was helping remove these steel rails from the flat car. The rails so unloaded were being used in the repair of the track, upon the main line of the company's road.
Under all the decisions, both plaintiff and defendants were engaged in interstate commerce. The Federal Employers' Liability Act, as bearing upon this case, provides (Federal Employers' Liability Act of April 22, 1908, Chapter 149, Section 1, 35 U.S. Statutes at Large 65, U.S. Comp. Statutes, 1916, Section 8657):
"That every common carrier by railroad while engaging in commerce between any of the several states or territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury or death resulting in whole or in part from the negligence of any of its officers, agents or employees."
This first point was directly decided by this court in plaintiff's favor in Eley v. Chicago G. W. R. Co., decided May 21, 1919; Ross v. Sheldon, 176 Iowa 618, 154 N.W. 499; and Brier v. Chicago, R. I. & P. R. Co., 183 Iowa 1212, 168 N.W. 339.
In Deal v. Coal & Coke R. Co., 215 F. 285, the plaintiff was engaged in repairing telegraph lines owned by the railway company, and used in directing the movement of its trains. It was held that the injured party was engaged in interstate commerce, and his rights were governed by the Federal Employers' Liability Act.
It has been said that the true test as to whether the employment is within the Federal Employers' Liability Act is, Was the employee, at the time of the injury, engaged in interstate transportation, or in work so closely related to it as to be practically a part of it? Shanks v. Delaware, L. & W. R. Co., 239 U.S. 556 (60 L.Ed. 436, 36 S.Ct. 188).
The record shows that defendants were carrying these steel rails on flat cars, for distribution along the right of way, and, when distributed, used in repairing its tracks. The plaintiff, under defendants' foreman, was engaged in removing the rails from the cars. The work, therefore, was so closely related to interstate transportation as to be practically a part of it. See Pedersen v. Delaware, L. & W. R. Co., 229 U.S. 146 (57 L.Ed. 1125, 33 S.Ct. 648). In this case, the injured party was an iron worker, employed by the defendant in the alteration and repair of bridges, under the direction of a foreman. A bridge was being repaired. The plaintiff was carrying some bolts or rivets from a tool car, to be used that night, or very early the next morning, in repairing the bridge. He was on his way to the bridge, carrying with him these bolts, etc., to be used in making the repairs. He was run down and injured, while so doing. It was held that his employment was within the purview of the Federal Employers' Liability Act, and he was permitted to recover.
So we say that the plaintiff showed a right of action under the Federal Employers' Liability Act, and the court erred in dismissing his petition on that ground.
II. It is next contended that the injury which he sustained was exclusively due to his...
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