Smith v. Burlington, C.R. & N. R. Co.

• Decision Date: 15 June 1882
• Citation: 12 N.W. 763,59 Iowa 73
• Parties: SMITH v. B., C. R. & N. R. Co
• Court: Iowa Supreme Court

12 N.W. 763

59 Iowa 73

SMITH v. B., C. R. & N. R. Co

Supreme Court of Iowa, Des Moines

June 15, 1882

Appeal from Fayette District Court.

ACTION to recover for personal injuries sustained by plaintiff while in the employment of defendant, resulting from the negligence of a co-employe. The court instructed the jury to return a verdict for defendant upon the evidence submitted in the case, which was done, and a judgment was rendered accordingly, from which plaintiff appeals.

AFFIRMED.

Ainsworth & Hobson and L. M. Whitney, for appellant.

J. & S K. Tracy, for appellee.

OPINION

BECK, J.

I.

The petition alleges substantially that plaintiff was employed as a section hand by defendant to work upon its railroad, and while engaged in loading car timbers at a switch of the railroad, was, without his fault, injured through negligence of a co-employe. These facts alleged in the petition are established without contradiction by the evidence of plaintiff. There is no testimony whatever tending to show the character of plaintiff's employment and the services which he was required to perform, further than that he was a section hand, and at the time of the accident, engaged in loading car timbers. It is not shown that his employment or the special service in which he was engaged at the time required him to go upon the cars, ride upon them, or in any way assist in the operation of the trains upon the road.

The court instructed the jury that upon the allegations of the petition, the admissions of the answer and the undisputed facts proved at the trial, the plaintiff was not entitled to recover, and directed a verdict for defendant. The questions raised by the assignment of errors all pertain to the rule of the law as recognized in this instruction. It therefore demands our attention.

II. To entitle an employe of a railroad company to recover for personal injuries inflicted through the negligence of a co-employe, it must be shown that his employment was connected with the operation of the railway. Code, § 1307; Schroeder v. The C., R. I. & P. R. Co., 41 Iowa 344; Same Case, 47 Id., 375; Deppe v. C., R. I. & P R. Co., 36 Iowa 52.

We are to determine whether the record shows that plaintiff's employment was of this character.

It is shown by the record, and nothing more, that plaintiff was a section hand, and when injured was engaged in loading a car. This service did not pertain to the operation of the railway. We held in Schroeder v. C., R. I. & P. R. Co., 41 Iowa 344, that plaintiff, who was engaged in loading upon defendant's cars the timbers of an abandoned bridge, as shown by the pleadings, was not employed in the use and operation of the railway. The facts of that case and this are alike.

In Deppe v. C., R. I. & P. R. Co., 36 Iowa 52, and in Schroeder v. C., R. I. & P. R. Co., 47 Iowa 375, the duty of the employes in the...