Swaim v. Chi., R. I. & P. Ry. Co.

• Decision Date: 17 January 1919
• Docket Number: No. 31641.,31641.
• Parties: SWAIM v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

170 N.W. 296

SWAIM

v.CHICAGO, R. I. & P. RY. CO.

No. 31641.

Supreme Court of Iowa.

Jan. 17, 1919.

Appeal from District Court, Appanoose County; C. W. Vermilion, Judge.

Action to recover damages for personal injury. There was a trial to a jury, and a verdict and judgment for plaintiff, from which defendant appeals. Affirmed.Porter & Greenleaf, of Centerville, and F. W. Sargent and J. G. Gamble, both of Des Moines, for appellant.

Howell, Elgin & Howell, of Centerville, for appellee.

PRESTON, J.

The petition alleged, substantially: That plaintiff was, by direction of defendant's foreman, at the time of the accident, engaged in tamping rocks under the ties, and was using a tamping pick. That he and another member of the crew, one Amberg, who was doing like work, were working near each other; these two were working some 40 feet distant from the rest of the gang. Amberg was some 6 or 8 feet in advance of plaintiff. That the picks supplied by defendant to plaintiff and the others were not safe, and that a rock was caused to fly from the pick used by Amberg. striking plaintiff in the eye, destroying the vision thereof. There was a special defense asserted by the defendant of assumption of risk by plaintiff, of the danger incident to rocks and pebbles flying when struck with picks of the character supplied. It was further alleged, and seems to be conceded, that plaintiff was an employé of the defendant under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), and at the time of the injury engaged in interstate commerce. It is conceded that there is no question of the fellow-servant rule in the case, plaintiff claiming that under the federal Employers' Liability Act defendant is liable for the negligence of any of its employés, or by reason of any defect in its appliances, or other equipments, etc. The pick is describedin the record as having two prongs, one being sharp and the other blunt, with a handle 2 or 3 feet long. Before the picks become worn, the blunt prong is square on the tamping end. At the time the plaintiff was injured, he and Amberg were engaged in tamping white limestone rock, ranging in size from the size of a hen's egg down, and some a little larger. The jury could have found from the evidence that the pick used by Amberg, as well as that used by plaintiff and the others, had, from use, become rounded and beveled so that the tamping end, which should have been square and flat, had become worn, so that the corners and edges had been worn off, and the tamping end rounded and wedge-shaped. When the rounded end of the pick was plunged into a bed of crushed rock by Amberg, it caused one of the rocks to fly up into plaintiff's eye, causing the injury.

The trial court submitted to the jury two of the grounds of negligence in the petition: First, whether the defendant was guilty of negligence in furnishing Amberg for work a tamping pick that was defective and out of repair by being rounded on the corners; or, second, whether the said Amberg was guilty of negligence in using, in comparatively close proximity to the plaintiff, such a pick. It is conceded by appellant in argument, that the pick used by Amberg was in a defective condition, and that this condition had been brought to the attention of the section foreman, or vice principal of the defendant in charge of the work, by plaintiff and others, as to the defective condition of the plaintiff's pick and Amberg's. Appellant argues that this concession necessarily involves an admission on the part of the plaintiff that he also knew of the defective condition and the dangers of using the pick in that condition, and continued in the work after he had called the foreman's attention thereto. Appellee contends that after complaint the foreman promised to remedy the defect, and that he continued in the work relying thereon.

One of the contentions of the appellant is that the rule in regard to continuing at work after complaint and promise to repair does not apply in this case, for the reason that the pick was a simple tool. Another contention is that there was no sufficient evidence to sustain a recovery in favor of plaintiff, for that it was not shown that defendant was guilty of any negligence that approximately caused the injury as to this plaintiff, but because under the evidence it is made to appear that a square-faced pick throws rocks as well as a worn and round-faced one, and that the injury might have happened had the pick not been defective. It is also claimed by appellant that the defendant assumed the risk, and, another, that the trial court erred in its instructions in regard to the proportionate damages in case the jury should find that plaintiff was entitled to recover, but was guilty of contributory negligence.

It may be well, at this point, to refer to the testimony. There is a conflict at some points, but at others there is little, if any, dispute. It was shown that the tendency of a rounded pick is to throw rocks in all directions, including the upward direction, and that a square pick would not throw rocks as much, and will not throw them upward, but out sideways; the rounded pick has no flat surface to carry the rocks on down under the ties, as does the square end when the downward stroke of the pick comes; that the rounded pick will make the rocks fly a good deal worse than will a square pick, and it is shown that the foreman knew this when plaintiff got hurt; picks would become rounded and beveled when used in tamping, in a period of from 20 to 30 days; it was the practice of defendant for the section foreman to collect the rounded picks and send them in to the company to have the tamping end squared up; according to the practice of the defendant it is its duty to keep them in repair; the men were not permitted to take the picks to their homes, but the section foreman would take possession of all the picks every night and deliver possession of the same next morning to the men who reported for work; that when the section foreman delivered the picks to his men on the morning of the accident, the pick of Amberg was considerably rounded, and this was known by the section foreman; that they had been in such defective condition without being repaired all summer, and up to the time of the accident, a few days before Christmas; complaint was made of the picks about the 15th of December, but foreman does not remember whether any of the picks were fixed between the 15th and the 22d. It was shown that plaintiff relied on the promise of the foreman several days before, and again on the morning of the accident, to have the rounded picks, including Amberg's, to whom the promise had also been made, repaired. Plaintiff says that by reason of the time, a day or so, by being careful, he thought he could get along safely; that there was only one man tamping close to him; that he did not get up close to Amberg, but got off 6 or 8 feet, and that he thought he could work there in reasonable safety; that if the foreman had not promised to square up the picks, he would have quit; that he got as far as he could from Amberg's pick, because he thought he would be safe back there; that he did not think rocks would fly that far from where he was. He had worked on the section for several years, and never before known rocks to fly as far as where he placed himself.

There is evidence that the foreman promised to have the picks fixed right away, that plaintiff relied upon what he heard the foreman tell Amberg, and what he told plaintiff, and concluded to continue work for a reasonable time, to enable the foreman to fulfill his promise. Plaintiff appreciated that the picks were defective, but, relying on the promise, and by being careful, he thought he would be safe in continuing. When picks get rounded they won't hit a rock in the center; they will slip around and wedge in between, and will throw rocks, make them fly. Plaintiff knew, two or three days before he was hurt, that the picks were rounded. He talked with the foreman about it on the morning he was hurt. Several days before that the foreman had said he would have them fixed. He knew the picks would throw rocks when they were rounding, and that they would fly some if the pick was square. We have not attempted to set out the evidence to any great length, and there may be some variations in it, or qualification, but the jury would have been justified in finding as we have stated.

[1][2] 1. It is argued by appellant that, because it is shown that a square, new pick will throw rock to some extent, even though a rounded pick would throw more rock, the difference in the operation and the results, in so far as the throwing was concerned,...