McCutcheon v. Chicago, Milwaukee & St. Paul Railway Co.

Evans, J. l. master and SERVANT: worK • * rail way ripres-°£ weeds0* nosious The line of duty of a section hand is the. care and maintenance of the right of way. Assuming that the railroad company owed a duty to the public to destroy all noxious weeds upon its right of way, it must necessarily perform such duty through employees. Weeds indigenous to the soil must necessarily grow, to some extent, upon right of ways. The best that the most diligent can do is to destroy them within a reasonable time. That some degree of danger is always present upon a right of way is a matter of common observation. Burs may prick, stones and cinders may bruise more or less. But these are among the small dangers which are incident to every active life. Such as they are, they are not hidden, but are obvious, and ordinarily avoidable. They are not perilous in any legal sense. True, the prick of a pin may resplt in blood poisoning and death. But the presence of a pin upon a right of way would hardly be deemed actionable negligence on the part of the railway company; and yet it would be more hidden and difficult of discovery than would the presence of sand burs and thistles. In this case, the plaintiff charges that the sand burs and thistles were thick and observable, and that he entered them only because ordered to do so by the section foreman. The general basis of the charge of negligence is that the defendant failed to furnish the plaintiff a reasonably [503] safe place to work. We are clear that the mere presence of weeds upon a right of way is not of itself a breach of duty to a section hand, whose duties involve the care and maintenance of such right of way. Vance v. Southern Kans. Ry. of Texas, (Tex.) 152 S. W. 743, at 745; San Antonio & A. P. R. Co. v. Burns, (Tex.) 89 S. W. 21; Gulf, C. & S. F. R. Co. v. Oakes, (Tex.) 86 Am. St. Rep. 835; 5 Thompson on Negligence, Sec. 5855. 2. Master and servant : Ii’ederal Employers’ Liability Act: exclusiveness of act. Some stress is laid by appellant upon the fact that we have an Iowa statute which requires landowners to destroy noxious weeds both upon the highways and upon railroad right of ways. It is urged that the defendant was guilty of a violation of this statute. There are several answers to this position of appellant’s: 1. Having brought this action under the Federal Employers’ Liability Act, his case must be - considered from the standpoint of Federal legislation, and ordinarily without reference to any state statute. Ordinarily, the rights of litigants under the Federal Employers’ Liability Act cannot be affected favorably or unfavorably by state statutes. Spokane & I. E. R. Co. v. Campbell, 60 L. Ed. 1125 (241 U. S. 497); Texas & Pac. R. Co. v. Rigsby, 60 L. Ed. 874 (241 U. S. 33). Under this rule, the operation of the act is uniform upon all. litigants. To hold otherwise would be to destroy such uniformity. 2. If the railway company be under the affirmative duty to remove from its right of way all weeds which are indigenous to its soil, it must necessarily perform ■ such duty through its employees, and these must necessarily go upon the right of way for that purpose. We think the order of the district court was proper, and it is — Affirmed. G-aynor, C. J., Lai® and Salinger, 'jj., concur.