
    John Keatley, Administrator, v. The Illinois Central Railway Company, Appellant.
    1 7 6 3 4 Negligence of Fellow Servant: railroads. Decedent was a water boy with a stone gang engaged in building a retaining wall along the embankment adjacent to an unfinished bridge on which the iron gang was working. The ties on this uncompleted bridge had been shifted about on a given day. On that day, decedent, while standing on a derrick platform used in building a side wall, was killed by the wrecking of a train crossing said uncompleted bridge. Held, deceased came within Code, 1807, permitting recovery for the negligence of a fellow servant, where the wrong is connected with “the use and operation of a railroad.’’ It is error to give a charge which could be understood to make it the duty of the foreman of the “stone gang” to have flagged the said wrecked train. Evidence as to the condition of the ties on the day before the accident should not have been admitted. It was competent to show how this bridge differed from a completed one.
    2 6 Practice: stating issues. It is error, the issues being nowhere else stated, to refer the jury to a complicated petition for the statement of facts “upon which plaintiff must recover,” if he is entitled to recover at all.
    
      Appeal from, Dubuque District Court. — Hon. J. J. Hey, Judge.
    Wednesday, May 22, 1895.
    The plaintiff is administrator of (the estate of Robert K'eatley, deceased'. This action was brought to- recover damages of the -defendant for causing the death of the deceased, which occurred by reason of a railroad car -on thle defendant’s road1 leaving the track, and tipping over, and falling -on Mm. There was a trial- by jury, which resulted in a verdict and judgment f-or the plaintiff. Defendant appeals.
    
    Reversed.
    
      
      W. J. Knight and Hubert O’Donnell for appellant.
    
      J. H. Shields for appellee.
   Rothroek, J.

2 3 I. The deceased was killed on the twenty-fourth day of October, 1890, at a bridge on the -line of defendant’s road near the city of Dubuque. It appears from the record that at that tame the defendant waisi engaged in replacing a; wooden bridge across a creek with an iron structure. The ueiw bridge was about seventy feet long, was a .single span, and each end rested on stone abutments. At the -time of the accident there were two gangs of men at work on and near the bridge. Each bo,dy of men was under a separate foreman. One was known as the “stone gang.” The abutments, of the bridge were fully completed, and the stone gang were not at work •on the bridge proper. They were engaged in building a retaining wall from the end of one of the abutments, to protect the embankmpint and 'trestle east of the '.bridge. The other 'employes, known a® the “iron -gang,” were employed in completing the superstructure of the bridge, and had so far progresised with the work that it was expected it would be finished the next day. The bridge was on the main line of defendant’s railroad from Dubuque to Sioux City, and during the time that the change was being made in the bridge the traffic over the road continued, the’ trains' passing over ■the new structure before it was. completed1. The stone ■gang used a derrick to raise thla stone for the construction of the retaining wall. This derrick was located between the retaining wall and the railroad .track, .and there is no claim that it was not properly placed to¡ do th'e work at which they wiere employed. The deceased was a boy, about fifteen, years old, and wais employed as one of the stone gang. Hi® services consisted of carrying and serving the men with drinking water, and in such other work as he was directed to do by the foreman. At the time of the accident he was on the platform where thie derrick was located, at the east lend of the bridge. A freight train approached from the west. There were twenty loaded1 cars in the train. The engine -and ten cars palssied safely over the bridge. The next two cars went off the track, but passed along over the ties beyond the east abutment, and fell over on the derrick platform, and killed the deceased. The superstructure or ironwork of the bridge was pushed east off the west abutment, and dropped into the stream below. Some of the cars went down with the bridge, and the rear end of the train remained standing on the west approach. These are the undisputed facts attend-, ing the death of the. deceased. The right to recover • damages is based on the alleged negligence of defendant’s employes, and 'the negligence charged is set forth in the petition in these words: “That at the time the bridge was bnt partially completed; that the ends of .the same were resting on abutments about seventy feet apart; that the bridge was not supported or held in' place by guys, rods; or other supports; that thie rails of the track crossing the same were not securely spiked to the ties, but were negligently and carelessly allowed to lie in a. loose, unspiked, and insecure condition'. for the passage of trains thereon; that said bridge, in its unfinished and insecure condition, with the loose and unfastened rails thereon, was negligently and carelessly allowed to lie and remain in such dangerous and insecure condition; that while decedent was- employed on and about the same, where Ms duty called him to be, and while said bridge and thie ■ties and rails thereon were in said insecure and dangerous condition, a heavy freight train was negligently and at a high and1 dangerous rate of speed run by appellant from the west, down a steep grade, around a curve, and on to said bridge; that the track, rails, and ties 'thereon were thereby spread and thrown apart, said train was derailed, and thrown with- great force against and upon said bridge, and the same was thrown down; that decedent, while so- employed on said bridge at the time of the1 destruction thereof, was thereby thrown under said bridge and train, from .the effects of which he dileld, to the damage to his estate in the sum of ten thousand dollars; that said accident, injury, and death of decedent wmc caused by the grossly negligent, carleless, and improper condition of said bridge, and the tie® and rail® thereof, so allowed to be by appellant, and the negligent and dangerous act of so- running said train at a dangerdus rate of speed over the same, and without fault or negligence on, the part of decedent.” There was a sharp conflict in the 'evidence a® to the condition of the bridge at tbe time of the accident. Much of this' evidence related to' the' spaces between tbe ties under the rails; the plaintiff’s witnesses giving testimony tending to show that they were wide apart, and the -testimony of the defendant’s witnesses was to the effect that they were placed at proper disitances. One of the plaintiff’s witnesses was permitted -to state, over the defendant’s objection, what the position of the ties was thiei day before the accident. The objection; to- this evidence should have been sustained. The ruling, of the court was erroneous. The inquiry should have been directed to tbe condition of the bridge at the time of 'the accident. There is no claim- made by any witness that the condition was the same twenty-four' hours before] the accident that it was when the accident happened. The evidence -is undisputed that the iron gang moved the ties back -and forth! during the day, to enable the men to get down under the track to rivet the ironwork. While we hold that this evidence should not have been admitted, yet we doubt, if this were the only error in the record, whether the judgment should be reversed on this ground. We have said1 this much in reference thereto lest it might be thought that the ruling of the court was approved.

II. Another witness was permitted to state, over the defendant’s objection, the manner of the construction of the completed bridge. We do not think there v¡jas- any error in this ruling. The bridge in question was in course 'Of construction, and it was competent to show how far its construction had progressed by comparison with a complete bridge. It is true that the defendant had the right to construct the bridge, and 'the work could not be done instanter, nor in one day, and it was under no duty to any of its employes to cease traffic on its road while engaged in the work. But that was no reason why it was not allowable for a witness to describe to the jury what would be a completed bridge.

III. The court, in the third paragraph of the charge, instructed the jury as follows: “Par. 3. The charge against the defendant, the Illinois Central Hail-road Company, and the statement of alleged facts upon which the plaintiff claims a right to recover, will be found in Ms original petition, and the first amendment- -thereto1, herewith submitted to you; and you will turn to these papers for the particular statement of fact upon wMch the plaintiff must recover, if he is entitled to recover at all, under the evidence and the instructions in tMs case; and I need not restate these allegations to you.” The point isi made that it was error for the court toi refer- the jury to the pleadings to determina thei issues. We can discover no ground upon wMch this instruction can- be sustained, If the other paragraphs, of the charge had stated the issues; the direction to the jury to examine' the petition and determine the issues would have been an error without prejudice. But there is no statement of the issues in any part of the charge, and the acts of negligence charged in the petition are such that no. proper presentation of thei case to the jury could have been made without a plain and clear statement of the issues. The case' is peculiar in this respect. The negligence charged involves the 'employes operating the train, the iron gang, and thla relation of the deceased to these two independent classes of employes; the deceased being a member of another force; called the “stone gang.” That similar instructions have; frequently been disapproved, and held to be erroneous and prejudicial, see McKinney v. Hartman, 4 Iowa, 154; Beebe v. Stutsman, 5 Iowa, 271; Reid v. Mason, 14 Iowa, 541; Pharo v. Johnson, 15 Iowa, 560; Little v. McGuire, 43 Iowa, 447; Fitzgerald v. McCarty, 55 Iowa, 702; Porter v. Knight, 63 Iowa, 365.

IY. We have set out the acts of negligence which the plaintiff asserted in his petition as grounds for recovery. The court charged the jury that the employes of the defendant might be held- to be negligent for failing “to put out a flag or other sign to stop the approaching train.” This was repeated in another part of the charge. These instouctions were plainly outside of any issue, in the case. No such charge of negligence was made in the petition. In the thirteenth paragraph of the charge this language was used: “It was the duty of the person who was in charge of the men, including deceased, or the several persons having control of the different parts of the work of the rebuilding and repair <of the bridge, to. know the condition of the bridge, and' its ability to support the approaching train, and to flag or give warning to. thiei approaching train in time to stop the same, and thus avoid a catastrophe.” This part of the charge is not only wrong in holding the defendant to a negligent omission to flag the train, hut it is misleading in failing to note the different employment of the two gangs of men at work at the bridge. The deceased was not in charge of the foreman engaged in building the superstructure of the bridge. Bte was in charge of the foreman of the stone gang, who had no connection whatever with' the bridge proper. His work, so far as the safety of the bridge was concerned, was at an end. The building of the retaining wall had not connection whatever with 'the safety of the bridge for the passage of trains. Under this instruction the jury might well believe that it was the duty ¡of the foreman of the stone gang to go on the bridge and examine it, and, if he found it unsafe, to flag the train.

Y. Other errors ariei assigned and discussed in argument, one of Which it is proper we should consider •in view of a new trial. It is strenuously contended that toe defendant is not liable, because toe evidence shows that toe employment of the deceased was not such as. to authorize a recovery. It is provided by section 1307 of toiei Code 'that “every corporation operating a railway shall he liable for all damages- sustained- by any person, including 'employees of sucb corporation, in consequence of toe neglect of agents, or by any mismanagement of toe engineers •or other employees of the corporation, and in consequence of the willful wrongs, whether of commission or amission, of such agent, lengmieiens, or other employees, when such wrongs are in any manner connected with' toe nse and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall hlei legal or binding.” This law was originally enacted in toe year 1862,.and the modification of the common law therein made, creating a liability for the negligence of ooemployes or fellow servants, has been sustained, and the law applied, in many cases, on the ground that it is applicable to all of a certain class; that is, those engaged' in employment which •exposes them to ’the peculiar dangers and perils: of thiei operation of a railroad. And it has not been limited to train crews only. It applies to section men; who have nothing to do with the movement of train®: by which they are injured (Fransden v. Railway Co., 36 Iowa, 372); a private dletective, injured by a ‘train while on the track in performance of Ms duty (Pyne v. Railway Co., 54 Iowa, 223). In Pierce v. Railway Co., 73 Iowa, 140, it, was held that it was not material that plaintiff claiming to recover was: not •employed in the operation of the road, but that it is sufficient if it is shown that he was injured by the operation of the road, and by the negligence of the parties: operating the train. In Smith v. Railway Co., 78 Iowa, 584, the plaintiff was a snow shoveler, and when a train was standing still hei slipped on some ice oin the platform of a car, and fell through a bridge. The defendant was: held liable, and the test of liability is stated as follows: “Does: the duty of the 'employe require him to perform service wMch exposes Mm to the hazard peculiar to the business' of using 'and operating a railroad?” And there are numerous cases which recognize the right of track men; having n<o> connection with the opieration of trains, to> recover for injuries: received while on or near the track by the negligence of the employes in operating trains. In all the cases: referred to the right of recovery isi not even questioned. Wie have said this much in this connection because there are expressions in some of the cases where injuries were received not by moving trains, ■to the effect that the statute applies only toi 'employes engaged in the operative department. Applying the facts attending the employment of the deceased to the statute, we think that if he was1 not out of thlei line of Ms duty in standing on the derrick platform, and if the ■employes of the defendant negligently run the train at a dangerous -rate of speed upon an unfinished and insecure and unsafe bridge, by reason of which the ears left the track, and caused the death of the deceased, he was within the -statute, and a right of action accrued. We will not discuss or pass upon the evidence. It is proper to say, in conclusion, that care should be taken in another trial to plainly direct the jury that the foreman of the stone gang is not chargeable with any negligence, if the evidence should hie the same on another trial a® it was on the one from wMdh this appeal was taken. He had no more connection or responsibility for the accident than if he and his gang had beien building a light of way fence along the track. For the errors above considered, the -judgment. oNthedástrict court is reversed.  