Hathaway v. Illinois Central Railway Co.

Given, J. I. The manner of connecting a spring, as was sought to be done in this instance, is as follows: An iron bar, about five feet long, is placed on top of the spring, one end of which is connected with the end of the spring, the other end projecting beyond the spring. A strong lever,.about nine feet long, is connected with and below the projecting end of the bar so that by prying down upon it the spring is brought into position to be connected with the hanger by inserting an iron bolt. Wooden wedges or blocks are sometimes placed between the spring and the wheels to keep the bar from turning when the pressure is applied. A piece had been cut off the two-inch square steel bar previously, and on this occasion a piece of the top of a railroad rail was used— “the top of a railroad rail; the part that the wheels run on. It was somewhere about five feet long. It was cut off down where the web commences. It was rounding on both sides.” No wedges were placed between the spring and the wheel. The plaintiff and two other employees were on the lever prying down, and Mr. Wehe was directing their movements and attending to inserting the iron bolt. The men having the spring sufficiently pressed down, and Mr. Wehe finding the parts not exactly in position, he inserted a small iron bar to bring them into position; and just then the piece of railroad rail on top of the spring, not being blocked or wedged, turned so as to throw the small iron bar against the plaintiff, breaking his jaw, and inflicting other injuries. [340] 1 2 [339] II. It is not claimed, nor could it be, on this record, that this case is within the provisions of section 1307 of the Code. Neither the employment in which the plaintiff was engaged at the time he was injured, nor the wrongs complained of, were “in any manner connected with the use and operation of any railway,” [340] as contemplated in said section. It is said in appellant's argument: “The plaintiff's cause of action is based: First. TJpon the negligence of the company in placing the plaintiff under the direction and authority of a careless, reckless, and incompetent employee. Second. Negligence in not providing safe and sufficient tools for the plaintiff to work with. Third. Negligence in not informing the plaintiff of the danger of working with said insufficient and unsafe tools and appliances, and placing him in a dangerous position.” There is no evidence that Gus Wehe was a reckless, careless, or incompetent person, except the circumstances of the accident. He was experienced in the kind of work to be done, and there is no evidence that the company had any reason to believe that he was careless or reckless. Conceding that he was careless and reckless on this occasibn, that does not show that the company was negligent in employing him. It was the duty of the company to exercise care in the selection of its employees. As already stated, Wehe was competent, so far as skill and experience are concerned, and there is no evidence that the company employing him had any reason to believe that he would be either reckless or careless in performing his duties. Something is said about the presence of Mr. Guernsey, the foreman of all the men employed in the shops and roundhouse, for a minute or two, as the work was progressing, prior to the accident. It is not alleged, nor is there'any evidence, that Mr. Guernsey was incompetent, or guilty of any negligence with respect to the means by which the work was being done. There is an entire absence of evidence to sustain the charge that the company was negligent in placing plaintiff under the direction and authority of a careless, reckless, and incompetent employee. The complaint as to the tools and appliances furnished relates entirely to the large iron bar. While it is true the bar used on this occasion was different from that formerly [341] used, and possibly more liable to turn when the pressure was applied, it is unquestionably true, that, had blocks been used, it could not have turned. The proximate cause of the accident was not the kind of bar used, but that it was used without blocks. The blocks required were pieces of wood about four inches thick, such as could be picked up in the roundhouse or shops at any time; hence there was no failure to furnish them. See Potter v. Railroad Co., 46 Iowa, 404. There is no evidence to sustain the charge that defendants were negligent in the employment of Mr. Wehe, or in furnishing tools or appliances so unsafe and unsuitable as to have caused the accident.- 3 4 III. The further claims of appellant are that Mr. Wehe was a vice principal, for whose acts the defendants are liable, and that Wehe was negligent in not informing plaintiff of the-danger of working with the tools being used, in placing him in a place of danger, and in not using blocks to keep the bar from turning. Plaintiff had frequently assisted in this kind of work, was familiar with it, and knew the kind of appliances being used, the manner of their use, and the dangers attending the work. All this was not only open to his observation, but was actually observed by him. There was certainly no negligence in not informing him of that which he already knew, nor in placing him in a position, the dangers of which were as well known to him as they were to any one else. ■ We have said that the failure to use blocks was the immediate cause of the accident; also, that there was no failure to furnish blocks, as they could bé found about the .shop at any time. Wehe had the direction of the work, and, while any of the employees could have picked up and placed the -blocks, it was certainly the duty of Mr. Wehe to see that .it was done, if blocks were necessary. There was evidence tending to show that Wehe was negligent in not causing [342] blocks to be used, but the question remains whether the defendants are liable for that negligence. There is no conflict in the evidence as to the nature of Wehe’s employment and duties. He was a machinist, and was employed to make such repairs on engines as were made in the roundhouse. He had no men assisting him, or under his direction, except as he occasionally called upon plaintiff and certain other employees to aid in work that he could not do alone, such as taking out and putting in springs. Plaintiff and said other employees were ordered by their superior, the foreman of the shops and roundhouse, to assist Mr. Wehe, when called upon by him. Plaintiff and these other employees worked under Mr. Wehe’s direction only when occasionally assisting him in work that he could not do alone. At all other times their employment was independent of Wehe, and not under his direction. It was only when occasionally assisting him, and as to the particular work then being done, that he had any authority to direct or control the plaintiff or said other •employees. They were not employed by him, nor were they subject to be discharged by him. The mere fact that Mr. Wehe had such occasional authority over these employees did not make him a vice principal, nor their superior, so as to charge the defendants with his negligence. Notwithstanding this authority, they were co-employees. See Peterson v. Mining Co., 50 Iowa, 673; Foley v. Railway Co., 64 Iowa, 650, 21 N. W. Rep. 124; Benn v. Null, 65 Iowa, 407, 21 N. W. Rep. 700; Baldwin v. Railroad Co., 68 Iowa, 37, 25 N. W. Rep. 918. IV. Counsel have discussed at some length the question whether plaintiff, knowing of the kind of appliances being used, waived these causes of complaint by continuing at the work as he did. As, for the reasons already stated, the judgment of the district court must be affirmed, we need not consider this contention. Aefiemed.