Williams v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 07 March 1904
• Citation: 79 S.W. 1167,106 Mo.App. 61
• Parties: MICHAEL K. WILLIAMS, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO., Appellant
• Court: Kansas Court of Appeals

79 S.W. 1167

106 Mo.App. 61

MICHAEL K. WILLIAMS, Respondent, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO., Appellant

Court of Appeals of Missouri, Kansas City

March 7, 1904

Appeal from Linn Circuit Court.--Hon. John P. Butler, Judge.

Judgment reversed.

M. A Low, W. F. Evans and Frank P. Sebree for appellant.

(1) The court committed error in refusing the demurrer to the evidence, and also in refusing defendant's peremptory instruction to find for defendant, requested at the close of all the evidence. Callahan v. Bridge Co., 170 Mo 473; Reddington v. Railroad, 108 Iowa 95; Malone v. Railroad, 65 Iowa 417; Foley v. Railroad, 64 Iowa 654; Deppe v. Railroad, 36 Iowa 52. The court committed error in giving instruction numbered 2 on the part of the plaintiff.

A. W Mullins and W. K. Amick for respondent.

(1) Defendant's instruction in the nature of a demurrer should have been refused. The negligence of the fellow-servants in pushing the beam sidewise instead of endwise, as was directed and intended, was negligence under section 2071, Code of Iowa, for which plaintiff could recover. (2) The rule in Iowa respecting liability of railroads for injuries caused by the negligence of fellow-servants is: That where the servant is exposed to the perils and hazards of the business of railroads and his employment is connected with the moving of trains as, by loading or unloading the same, the servant may recover. Deppee v. Railroad, 36 Iowa 52; Smith v. Railway, 78 Iowa 583; Handelun v. Railway, 72 Iowa 709; Stroble v. Railway, 70 Iowa 555; Larson v. Railway, 91 Iowa 81; Butler v. Railway, 87 Iowa 206; Railway v. Artery, 137 U. S. Rep. (Iowa) 507; Akerson v. Railway, 75 N.W. 676; Smith v. Railway, 80 N.W. 658.

OPINION

ELLISON, J.

The plaintiff is an employee of defendant and was injured by the negligence of a fellow-servant. He brought this action for the injury thus negligently inflicted and prevailed in the trial court.

The defendant's railway passes through the States of Iowa and Missouri and the negligent injury was inflicted in the former State. It is therefore governed by the law of that State. There is a statute in that State (as there is in this) known as the fellow-servant law. It 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."

Plaintiff's injury came about while he and others were on one of defendant's "work trains" which was used in conveying material for new bridges, and carrying old material away. Plaintiff and his fellow-workmen were engaged in loading onto a car some large iron beams weighing about twelve hundred pounds which were part of an old bridge and were to be moved to some other place on the line of the road. While thus engaged, in consequence of the negligence of some of his fellow-workmen, his hand was caught and his fingers so mashed and injured that two of them had to be amputated. The fellow-servants whose negligence caused plaintiff's injuries were a part of the "bridge gang" and were assisting in loading the car.

As already stated, plaintiff's right to hold defendant liable is governed by the Iowa statute, and that statute has been construed by a decision of the Supreme Court of this State which, under the Constitution of the State, we must allow to control the disposition of this case. It is decided in Callahan v. Railway, 170 Mo. 473, that to hold the master liable, under the terms of that statute, the servant must have been injured by the negligence of another servant "while moving a train;" and that, "the test is, was he injured in consequence of the negligence of another employee or engineer in moving a train?" (p. 484). "That the injuries must have been inflicted by the movement of a train" (p. 490). The court further said: "It thus appears that everywhere except in Iowa and Minnesota, the adjudications agree that it is not essential that the injury should have been inflicted by reason of the negligence of a fellow-servant while actually engaged in running a car, but that the injured employee may recover if injured by the negligence of a fellow-servant while they are engaged in doing any work for the railroad which was directly necessary for the operation of the railroad . . ." (p. 495).

Plaintiff seeks to avoid the controlling power of this decision upon us by an earnest contention that it is merely dictum and that it is directly opposed to what the Supreme Court of Iowa has itself said of that statute. We think counsel are mistaken in...