Byram v. Illinois Central Railroad

Deemer, C. J. Plaintiff was a fireman on,one of defendant’s engines, running between Dubuque, Iowa, and Freeport, Illinois. The engine was engaged in interstate commerce and plaintiff was employed therein. On the day of the accident, he came into Dubuque on his engine, arriving there nt about 10:30 A. M. He left the engine with the engineer, upon a side track, where, according to rule and custom of the company, it was to be taken in charge by a hostler of the roundhouse. He had no further duty with reference to his engine except to return to it in time' to take it out on its next trip, and he expected to find it on a track away from the turntable, ready to go on its journey. It was the duty of the hostler, and of repair and roundhouse men, to take the engine, where it was left by'the engineer and fireman, to clean and repair it when necessary, to have it filled with water and placed upon a track, ready to start on its next trip. This also- included the turning of the engine upon a table, when necessary, and the placing thereof upon the proper track, ready to leave on its journey. The engineer and fireman were expected to return to the engine about 50 minutes before it was time to go on its next run, to see that everything was supplied which was required and that it was ready to start. They often found the engine in the roundhouse and there looked it over; but, save in a single instance (and even this is in doubt), they never undertook, nor was it their' duty, to take or to assist in taking the engine from the roundhouse or to use the turntable to head it in the proper direction or to place it upon the track where it was to be received by the engineer and fireman. On the day of the accident, plaintiff went to the roundhouse, got on the engine and saw that everything was in readiness; when the hostler who was in charge of the roundhouse got upon the engine and ran it onto the turntable. Before the engine started, plaintiff left it in the roundhouse, but followed it out onto the turntable; and when it had been placed thereon, someone, doubtless the hostler, or his helper, asked him to latch or lock the turntable. Pursuant to this request, plain [634] tiff went to the latch, a thing he had never done before during his seven years of employment, and finding it difficult to make the connection, got his hand in such a position that, when the' table was moved for some cause, his little finger was caught and injured so that it had to be amputated. The wound became infected and two other amputations were rendered necessary. There was testimony to the effect that one of the hostler’s helpers, in charge of the machinery which turned the table, was notified by plaintiff not to move it, as he was going to latch it; and that, while plaintiff was attempting to latch the table, this employee carelessly and negligently, and without warning, applied the air which controlled the table, causing it to move, with the result heretofore stated. 1. masted and ’ ?e™n::stattionTretoai" LiaMiity Act: operating turntable. • I. The negligence charged in the petition is that of this assistant to the hostler, and there was enough testimony to establish this negligence. Under the' liberal construction placed upon the Federal Employers’ Liability Act (35 Stat. at Large, Part I, p. 65), by the Supreme Court of the United States, followed as of course by the state courts, it is clear that the moving of the’ engine, preparatory to attaching it to cars to be run in interstate commerce, before making its run to Freeport, Illinois, was an act in interstate commerce, and the law of the case is furnished by the Federal Act. North Carolina R. Co. v. Zachary, 232 U. S. 248; Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156; Armbruster v. Chicago, R. I. & P. R. Co., 166 Iowa 155; Winters v. Minneapolis & St. L. R. Co. (Minn.), 148 N. W. 106. „ ,, 2. Master and spmp1?on ot EmUoyers’'al Liability Act. II. It is also clear that the plaintiff did not assume the risk arising out of the negligence of anothér 00 employee; for this he could not anticipate or guard against. Caverhill v. Boston & M. R. Co., (N. H.) 91 Atl. 917, Norfolk & W. R. Co. v. Earnest, 229 U. S. 114. Indeed, this rule is so well settled that no authority need have be'en cited in its support. [635] 3. Master and servant: con-tributary neg-e«uEmpioyérs’ Liability Act. III. The question of plaintiff’s contributory negligence was properly submitted by the court to the . -jury, under the rule of the Federal statute w^c^> ™ substance, adopts the comparative negligence doctrine; and the trial court was not justified in telling the jury that plaintiff’s contributory negligence, if shown, would defeat his action. 4. Master and servant : scope oí employment: atinganturn-r" table. IY. The real question in the case is whether or not plaintiff was injured while in the course of his employment as fireman, or was employed by defendant in interstate conimerce at the time he received his injuries. He alleged m his petition that, because of a general strike on defendant’s line, it was short of help in ftie' roundhouse at this particular time, and that his was an emergent call to assist the hostler in the performance of his work; but he offered no testimony in support of these allegations. He also alleged that the hostler was short of help (which he did not prove) and that the hostler asked and directed him to latch the table and thus assist in getting the engine turned so that- it might be run off on the proper track. He proved that he was requested by the hostler to latch the table; but he introduced no testimony showing, or tending to show, that the hostler had any authority to employ help or to call men to his assistance. He also relied upon a rule of the defendant company, reading as follows: “In ease of danger to the company’s property, employees must unite to protect it. ’ ’ But there is, as we read the record, no proof of any immediate danger to defendant’s property. The engine had safely passed upon the turntable, had reached its proper position thereon and was stationary. It was not intended to move it until the table was latched, and the testimony showed there was no immediate danger even if the table were not latched, provided the engine was properly balanced. There was a helper present whose duty it was to apply the air which moved the table, and he could easily have stepped aside and done the latching. The engine was under proper control and, [636] when plaintiff went to the latch, the table was stationary and, did not move, as plaintiff claims, until the helper negligently started it. [637] 5. Master and servant : authority of servpfoying assistanee. [636] So that there is no proof of any emergency, no proof of lack of help, and no such proof as would have justified the plaintiff in going to the latch to protect the defendant’s property ; for it was not then in any danger. The testimony shows that neither the engineer nor the fireman had any duty to perform about the turntable or in the roundhouse, save to see that the engine was properly equipped and supplied by the roundhouse men. They left their engine upon a track outside the roundhouse and away from the turntable, where it was taken in charge by the hostler, by him run into the roundhouse and there cleaned, repaired and supplied by the roundhouse men. It was then brought out by the hostler and his helper, or helpers, placed upon the turntable, headed for the proper track, run onto this track, and there left, to be received by the engineer and his fireman. Under the terms of his employment, plaintiff had nothing to do with the management or control of the turntable or of the engine, until it was placed upon the proper track after it had been taken from the roundhouse and headed onto the proper track after leaving the turntable. If, then, plaintiff on his own motion undertook to assist with the turntable, he was a mere volunteer, to whom the defendant owed no duty save not to wantonly or willfully injure him; for he was not then engaged in his master’s service. He relies, however, upon the rule before quoted, and upon an emergency created by the alleged strike, as hitherto stated, and also upon the direction given him by the hostler. The testimony shows, however, that the hostler had no authority or control over the plaintiff; that he (plaintiff) got his orders from the master mechanic or traveling engineer, and not from the hostler; and there was no testimony that the hostler had any authority, either express or implied, to call him (plaintiff) to his assistance. The ease is no different than had the hostler called upon a mere stranger [637] to perform a like service. The rule in such cases is well understood. The employee, to come within the provisions of either the state law or the Federal act, must receive his injuries while in the course of his employment. If he voluntarily undertakes the performance of a duty for which he was not employed, he acts at his own peril and does not come within the terms of the act. See Dodge v. Chicago, G. W. R. Co., 164 Iowa 627; Sloan v. The Central Iowa R. Co., 62 Iowa 728; Lindquist v. Crown Plaster Co., 139 Iowa 107; Aga v. Harbach, 127 Iowa 144 (4 Ann. Cases, 441 and extensive note). Cases from other states, upon facts quite similar to the one at bar, announce the same rulés. See Weeks v. Chesapeake & O. R. Co., (W. Va.) 69 S. E. 805; Marshall & E. T. R. Co. v. Sirman, (Tex.) 153 S. W. 401; Derrickson’s Adm’r v. Swann-Day Lumber Co. (Ky.), 115 S. W. 191; Houghton v. Pilkington, (Eng.) 28 Ann. Cases 790, and learned note; Pugmire v. Oregon Short Line R. Co., 33 Utah 27 (14 Ann. Cases 384, and learned note thereto); Mellor v. Merchants’ Mfg. Co., (Mass.) 5 L. R. A. (O. S.) 792, and note; Parent v. Parent Mfg. Co. (N. H.), 47 Atl. 261; McGill v. Maine & N. H. Granite Co. (N. H.), 46 Atl. 684; Barstow v. Old Colony R. Co. (Mass.), 10 N. E. 255; Southern Railway Co. v. Pope’s Administrator, 19 Ann. Cases 376, 133 Ky. 835 (this annoted case also has a valuable note to which reference is made); Plumb v. Cobden Flour Co., (Eng.) 32 Ann. Cases 495, and cases cited in note. An accident arises out of the employment, where it is something the risk of which might have been contemplated by a reasonable person when entering the employment as incident to it. Zabriskie v. Erie R. Co. (N. J.), 88 Atl. 824. A master is not liable to a mere volunteer who undertakes without request and without his knowledge to assist a servant and a w^0 *s injured in consequence thereof. This js fun¿amerital law, and a mere hostler, in virtue of his position, has no implied authority to call assistance to his aid, in the absence of an emergency or a showing of implied authority. [638] 6. Master and servant: scope of erapioyment: Feaeral Employ-Act -Len«iney fireman. Counsel for appellee insists, however, that these well-settled rules have been changed by the Federal Employers’ Liability Act; and that all that is necessary to be shown, to recover under that act, is that an employee . . . was injured while engaged m interstate commerce, no matter whether in the course of his ’ employment or not. The cases cited by him d0 no^ ag we rea¿ them, so hold. Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156; North Carolina R. Co. v. Zachary, 232 U. S. 248, do not announce such a doctrine. The trial court, in its instructions, told the j'urj'- that plaintiff must show that he received the injuries while in the scope of his employment and in the line of the duty which he was employed to perform. This he did not do and, under this instruction, the verdict should have been for defendant. We may, in closing, say that there was no testimony showing, or tending to show, that it was the custom of firemen to assist in getting the engine from the roundhouse across the turntable and onto the track where the engineer and fireman were to receive it; and no testimony that defendant had any knowledge that the hostler had ever before requested assistance or that anyone on any other occasion had assisted the hostler or his helper. While plaintiff made out a case on paper, he failed to prove it, and defendant’s motion for a new trial should have been sustained on this ground. It follows that the judgment must be reversed and the cause remanded for a new trial.— Reversed and Remanded. Weaver, Evans and Preston, JJ., concur.