Dunn v. Chicago, Rock Island & Pacific Ry. Co. ( 1906 )

Sherwin, J.

Decedent was in tbe employ of tbe defendant as a section hand, and while be, with other members of tbe gang, were engaged in repairing tbe track by putting an occasional new tie under tbe rails thereof, one of bis fellow workmen left a heavy crowbar on tbe ground at tbe side of tbe track, so near to tbe rail that a passing train struck it and hurled it against tbe deceased with such force as to cause a fatal injury. Tbe petition alleges negligence on tbe part of tbe co-employé in leaving tbe bar where he did, and that tbe train which struck tbe bar was negligently operated.

1. Negligence:evidence: conclusion. No one witnessed the accident except tbe deceased, and within two or three minutes thereafter, he stated to his fellow workmen that he had been struck by the bar, and that it had been set in motion by the train. A witness also testified that in the same conversation he said that his co-employé had left the bar too near the track, but this was stricken out on motion of the defendant. The ruling was clearly right. The statement was a conclusion relative to the negligence of the co-employé, and though a part of the res gestee it was incompetent. Furthermore, another witness later in the trial gave the same testimony, which remained for the consideration of the jury.

a. Same: expert evidence. One of the plaintiff’s expert witnesses, a physician, was asked whether decedent’s injury might have been caused by a crowbar “ thrown by coming in contact with a swiftly moving object like a train.” An objection to the question was sustained, and rightly so. The material question for the surgeon was whether the injury might have been caused by the impact, and not whether the bar might have been thrown by the train, or some other force.

s. railroads: operation of train: evidence. The motion for a directed verdict was based on several grounds, and was sustained generally. Among others, it was averred that the original petition did not charge the defendant with negligence, and that there was no proof of the negligence of either the de-7 , . , ° . fendant or decedent s co-employe, or any evidence tending to show that decedent was free from contributory negligence. The original petition sufficiently averred the negligence of the co-employé, and the amendment thereto alleged negligence in failing to stop the train after decedent’s peril was discovered by the trainmen, or might have been by the exercise of reasonable care. There is no evidence showing negligence in the operation of the train. The deceased was not in a known position of peril, and there is no evidence that the engineer either saw or could have seen the bar in time to have stopped the train, or that if he had seen it, its position was snch as to suggest contact with the train, or injury to the deceased if such contact should occur. While the evidence as to the negligence of the coemployé, and as to decedent’s freedom from contributory negligence, is not as satisfactory as in many cases, we are of the opinion that it made a fair case for the jury on those issues.

4. railroads: section^liand: negligence of co-empioyé. The important and absolutely controlling question in this case is whether the defendant is liable for the negligence of decedent’s co-employé, under section 2071 of the Code. And there is involved in this inquiry the question whether such co-employé was en- . . .... gaged m work which was m any manner connected with the use and operation of the defendant road, within the meaning of the statute. The statute has been so many times construed adversely to the appellant’s contention that we deem the question no longer an open one in this state. . The deceased cleárly was exposed to the peculiar hazards incident to the use and operation of railroads, and was within the protection of the statute. Jensen v. O. St. L. Ry. Co., 115 Iowa, 404; Akeson v. C. B. & Q. Ry. Co., 106 Iowa, 54. But the ordinary work of a section gang on and along the track is not so connected with the use and operation of a railway as to bring it within the intendment of the statute and make the company liable for the negligent act of one of the gang, when he is simply so engaged. We must not be understood to say or mean, however, that this rule is applicable when the work of the gang is such as to require it to direct or control the movement of trains at a particular time and 'place. See Keatley v. I. C. R. R. Co., 103 Iowa, 282. What we mean is that the ordinary work of the section gang, disconnected from any control of the train, is not within the meaning of the statute. Connors v. Chicago, N. W. Ry. Co., 111 Iowa, 384; Akeson v. Railway Co., supra; Reddington v. Railway Co., 108 Iowa, 96; Larson v. Railway Co., 91 Iowa, 81; Stroble v. Railway Co., 70 Iowa, 556; Matson v. Railway Co., 68 Iowa, 22; Malone v. Railway Co., 65 Iowa, 417; Hathaway v. Illinois Central R. Co., 92 Iowa, 337.

We shall not take the time to review the cases cited in support of our holding, for they have been often cited and discussed, but we call especial attention to the Hathaway Cáse, in 92 Iowa, 337, because it directly answers the appellant’s contention that the repair of the track is essential to the operation'of the road. In that case a workman was injured while repairing an engine in the roundhouse, by the negligent act of a fellow workman. It was held that the repair of an engine or car was not so connected with the operation of the road as to create liability under the statute. The condition of the motive power of a railway, ordinarily is as essential to its operation as the condition of its track, and there is no difference, in principle, between that case and this. It may he well to say in this connection that some of the language used in the Stroble Case has been modified in later cases, but the modification in no way affects the present inquiry.

Nor is the conclusion that we reach in conflict with our own case relied on by the appellant, with one exception which we shall call attention to further along. In Williams v. Railway Co., 121 Iowa, 270, and Jensen v. O. & St. L. Ry. Co., supra, the negligent acts complained of were directly connected with the movement of rolling stock, and the only questions determined were that the plaintiffs were exposed to the peculiar dangers and perils attendant upon the use and operation of railroads. The same statement applies also to the following cases. Keatley v. Railway Co., 94 Iowa, 685 (the first appeal in that case) ; Butler v. Railway Co., 87 Iowa, 206; Pyne v. Railway Co., 54 Iowa, 223; Pierce v. Railway Co., 73 Iowa, 140; Frandsen v. Railway Co., 36 Iowa, 372, which was decided before the present statute became effective. The only case really affording any support for the appellant’s contention is Haden v. S. C. & Pac. Ry. Co., 92 Iowa, 226. There a section foreman, while engaged in his duty,- was injured by a passing train. It was contended by the railway company that his duties were “ wholly connected with the track, and in no .way connected with the use and operation of trains thereon.” We held that, while he was not engaged in the operation of trains, his work was on and along the track on which trains were operated, and had especial reference to train movements in the way of keeping the track in repair and in condition therefor, and that his work was therefore of the. hazardous kind contemplated by the statute. It was further said “ that under section 1301 of the Code of 18Y3, a person engaged in keeping in repair the track of a railroad company, was engaged in the business of operating a railroad.” There was no question but what Haden was a protected employe under the decisions. Nor was there any question about his having been injured by the negligent act of employes who were operating a moving train. Hence the statement that we have quoted was wholly foreign to any issue,. or in fact to any question in the case, and in so far as it purported to find support in the reasoning in Malone v. Railway Co., supra, it clearly was wrong; the reasoning of that case being directly opposed to the statement. It was said in the Malone Caso that the removal of- snow from a railroad track was in no proper sense connected with the operation of the road. Furthermore, the language in the Haden Case is expressly referred to and discredited in the Connors Case, su-pra. Some, at least, of the cases, recognize and point out the distinction between the exposed risk of the injured, and the work which is so connected with the operation of the road as to create liability under the statute, and there can now be no question as to the' distinction'between the two.

6. same: when a question of law. Finally, it is said that the question under consideration was exclusively a question for the jury, and that it should have been submitted to it. In some cases fact questions may arise, which make it necessary to so submit this particular question, but such is not tbe case here. There was no question as to- what the employment was, or as to . . . . . _ what the men were doing at the time. It was, therefore, a question of law for the court. A verdict was properly directed, and the case is affirmed.