Stebbins v. Crooked Creek Railroad & Coal Co.

McClain, J. — Plaintiff was a fireman on an engine operated on defendant’s road, hut at the time of receiving, the injury complained of, he was engaged, under the direction of' one AYilson, who was in control of the work, in transferring-rails from a car standing on the side track to another car standing on the main track of the road. ,Two skids, consisting of short rails, had been laid between the two cars, and another rail .had been set up at the further side of the car to 514 wbicb. tbe rails were being transferred, and to tbis rail a pulley was attached. A rope connected with tbe engine, which .stood on tbe main track near tbe car to wbicb tbe rails were being transferred, but disconnected from such car, passed through tbis pulley, and was used in connection with tbe motion of tbe engine in drawing tbe rails over from tbe one car to tbe other. Tbe method of operation was to put several rails on tbe skids, and attach a rope to tbe middle of them by means of a short chain and book, and then by moving tbe engine with which tbe rope was connected away from tbe car to wbicb tbe rails were being transferred, to draw tbe rails on tbe skids across,from tbe one car to tbe other. Plaintiff’s business in tbis connection was to attach tbe rope to tbe middle of tbe rails and then stand at one end of them, and, after tbe engineer was signaled to' move tbe engine to keep tbe rails straight on tbe skids while they were being drawn over. Tbe evidence would support tbe finding by tbe jury that Wilson was- superintending tbe operation; that tbe bunch of rails wbicb was being transferred when tbe accident happened from .which plaintiff received bis injury, stuck on tbe skid at tbe end where plaintiff was standing; and while plaintiff was,trying to pull.tbe rails straight, so that they would move over together on tbe skid, Wilson pushed them with bis foot, and instead of tbe rails moving on tbe skid tbe skid itself slipped off tbe car, letting tbe ends of tbe rails down, so that they struck plaintiff and broke bis leg; that tbe act of Wilson was .negligent and brought about tbe injury to plaintiff; and that plaintiff was not negligent. It seems clear that in pushing tbe rails Wilson was not acting as vice principal, but as co-employe of plaintiff; for, as to tbe very thing wbicb was being done, Wilson and plaintiff were acting in tbe same capacity. Each was assisting in tbe movement of tbe rails. Tbe question we have before us is whether, assuming that tbe injury resulted from tbe negligent act of Wilson,, and that Wilson was a co-employe with 515 plaintiff, the latter cap recover against defendant for injuries resulting from the negligence of such co-employe. Both of these men were in the general employment of the defendant; and if the business in which they were at that time immediately engaged was connected with the use and operation, of defendant’s railway, then plaintiff may recover from defendant for tbe injury resulting from fhe negligence of his co-employe Wilson, under the provisions of Code, section 2071, in which it is said that “every, corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of the agents, or by the mismanagement of the engineers or other employes thereof, or in consequence of the wilful wrongs, whether of commission or omission, of such agents, engineers, or other employes, when such wrongs are in any manner connected with the use and operation of any railway on or about which .they shall be employed.” The mere fact that an employe is engaged in loading or unloading cars standing on the railroad track does not bring him within the scope of the statute. Schroeder v. Railroad Co., 41 Iowa, 341; Smith v. Railroad Co., 59 Iowa, 73; Luce v. Railway Co., 67 Iowa, 75. But here the loading was being accomplished by means of the use of a locomotive engine moving on the railway track, and the question is whether the use of the engine in drawing the rails from one car to another brings the case within the provisions of the statute. It is argued by counsel for appellant that, inasmuch as this loading of the rails had no connection with the operation of any train, and might have been accomplished by means of power furnished by a stationary engine, or from any other source, as well as by the use of a locomotive engine on the track, the act was not so connected with the operation'of a railroad as to be within the statute. But the statute is not limited in its application to those employes who are immediately connected with the operation of trains. Pyne v. Railroad Co., 54 Iowa, 223; Larson v. Railway Co., 91 Iowa, 81; Chicago, 516 M. & St. P. Ry. Co. v. Artery, 137 U. S. 507 (11 Sup. Ct. Rep. 129, 37 L. Ed. 747) ; Akeson v. Railway Co., 106 Iowa, 54. The plaintiff in this case was engaged in transferring rails from one car to another by means of the use of a locomotive engine moving on the railroad track. The engine was furnishing the motive power to draw the rails across from one car to the other, and we think this was a part of the hazardous business of operating a railroad. The danger was not necessarily the same as it would have been had the power used been a stationary engine or a horse. The operation involved the use of heavy machinery and the great power of a locomotive engine. A case quite analogous is that of Nichols v. Railway Co., 60 Minn., 319 (62 N. W. Rep. 386), in which it was held that an employe injured by reason of the negligence of another-employe in connection with the straightening out and stretching, by means of a locomotive engine, of a wire cable, to be subsequently used in the pulling of a plow on flat cars in the repair of the road, was within the contemplation of a statute of that state, similar to its provisions to the section of our Code above referred to. While as indicated in Akeson v. Railway Co., supra, the language of the Minnesota statute is broader in its terms than that of the Code section which we are construing, yet the courts of that state have limited the meaning of the language of their statute so that it includes only cases involving the hazardous business of railroading, and the decision is, we think, directly in point. It has been difficult, in many of the cases which have come before us, to determine on which side of the dividing line the acts in question should fall; but in the conclusion which we reach we are not running counter to any of the decisions already made in construing the statute, and avo are carrying out its general policy. — Af firmed.