Handelun v. Burlington, Cedar Rapids & Northern R'y Co.

Reed, J. The train on which plaintiff was employed was used for hauling sand and gravel from a pit, and distributing the same along the main track of defendant’s road for ballast. At the time of the accident, the .train was at the pit, being-loaded. A quantity of sand had fallen upon the track in front of the engine, and plaintiff and one or two other employes were directed by the foreman to remove it. Before they had finished the work of removing it, however, the engine was put in motion, and started forward. On one side of the track there was a bank of sand about eight feet high. The space between this bank and the sides of the cars was about two feet wide. Plaintiff, in getting out of the way of the engine, stepped into this space. After the engine and one or two cars had passed, a quantity of sand fell from the bank, striking and knocking him against the moving cars. The wheels of one of the cars struck or passed over one of his legs, fracturing the bone in two places. Plaintiff' seeks to recover for the injury, on the ground that it was occasioned, [711] as he alleges in bis petition, by the negligence and carelessness of the employes of defendant in suddenly putting the locomotive in motion, and moving it and the train forward, without first ringing the bell, or giving other signal to indicate that they were about to do so. It is also alleged that they negligently ran the train upon him. There was a conflict in the evidence as to whether the bell was rung before the train was started ; but that was the only controverted question of fact in the case. Plaintiff saw that the train was moving towards him, and, to avoid it, he stepped or jumped into the space in which he stood when he was struck by the falling sand. The space was wide enough to permit him to stand clear of the train, and he would not have been injured if the sand had not fallen upon him, and thrown him against the cars. , ploye^ne^?' emulóle? co~ c<Ke,§i307. I. Counsel for defendant asked the court to instruct the jury that, as plaintiff was not employed in the work of operating the train on the railroad, he did not belong to the class of employes to whom the statute (Code, § 130T) gives a remedy for iujur-jeg occasioned by the negligence of co-employes ; but the court refused to give such instruction. As stated above, plaintiff was employed on a train which was used for hauling and distributing sand upon the track. He assisted in loading and unloading the cars, and he might be required to perform any other service in or about the work which was being done, and when he passed between the gravel-pit and the points on the track where the ballast was deposited he rode upon the train. In the performance of the duties of his employment, he was necessarily exposed to all of the ordinary risks and dangers which arose from the operation of the train. The statute was intended for the protection and benefit of the class of employes who, from the nature of their employment, are exposed to the dangers incident to the operation of the railroad ; and we think it clear that employes whose duties are of the nature of those performed by plaint [712] iff should be included in that class. The facts of the case, so far as they affect this question, are like those in Deppe v. Chicago, R. I. & P. R’y Co., 36 Iowa, 52. The ruling of the district court on the question is in accord with the holding of this court in that case. proximate cause: evidence. _._. s nutsoNAn mato^caSsef1" ■mie stated. II. Counsel also asked the court to instruct the jury that, as the immediate and direct cause of the injury was the falling of the sand from the bank, and this was not the effect or consequence of the omission of the signal before the train was started, plaintiff could not recover. It is very clear that, unless it can be said that the injury was the natural and proximate consequence of the negligence complained of, plaintiff' is without remedy. The question whether the relation of cause and effect existed between the alleged negligent act and the injury was not submitted to the jury. 'We do not say that a case might not arise upon a somewhat similar state of facts in which it could be said that the injury was the consequence of the omission complained of. If the plaintiff had been working upon a bridge or culvert, and the locomotive had been suddenly put in motion without any signal having been given, and he had been compelled to jump from the bridge to avoid being run over by the engine, and had sustained an injury, it could very properly be said, perhaps, that the injury was the natural aud proximate consequence of the act of starting the engine without having given the signal. In that case, the immediate cause of the injury would be the act of the party in jumping from, the bridge ; but, as lie was compelled to do that by the act of the engineer'in running the engine upon him, without first giving him warning and an opportunity to get to a place of safety, it would be an immediate consequence of that act. The injury would be a result naturally to anticipated from the act. While it may notl be wise to attempt to lay down any general rule on the subject, we think it may safely be said that, whenever one person is compelled by the act or [713] omission of another to do some act from which injury to himself is reasonably and naturally to be apprehended, and injury does result from it, such injury should be regarded as a consequence of the act or omission of the other. Practically, that is the doctrine of Crowley v. Burlington, C. R. & N. R'y Co., 65 Iowa, 658. Under this rule, if the condition of the bant had been such that a slide of sand from it while the train was passing, such as actually occurred, was reasonably to have been apprehended, and plaintiff, owing to the sudden starting of the train, and the omission to give the signal, had no opportunity to go to a place of safety, but was compelled to go into the space between the bank and the track to avoid being run over by the train, it could be said that the injury was the consequence of the negligence complained of. Put, unless it could reasonably have been anticipated that the accident which was the immediate cause of the injury would occur, and he was compelled by the act or omission complained of to occupy that place, the injury would, in no legal sense, be the consequence of the act or omission. And it seems to us that there was no evidence of the existence of these facts. The case appears to have been tried upon the theory that it was not essential to plaintiff’s right of recovery that they be proven. Upon the state of the proof when the parties rested, plaintiff had not made out a case, and the court should have given the instruction asked Peveksed.