Branstrator v. Keokuk & Western Railway Co.

Master and Servant: Railroads. An employe of an independent contractor engaged by a railroad company to load slack on cars, cannot recover from the company for personal injuries caused by the falling of a piece of slack, upon the ground that he'relied upon the company’s promise, made to the contractor’s employes, to cool the top of the pile with water, since the promise to repair is only important to rebut the inference that defects are waived by continuance in employment with knowledge of their existence; and as the company had no duty in the premises, the employe waived nothing by continuing in the contractor’s employment. Assuming risk or employment. Where a railroad company employs a person to remove a pile of slack, and all the dangers incident thereto were obvious to such person, it is not liable for negligence to an employe of such person who is burned by the slack, where it is in the same condition and in the same location when the injuries are received as when the contract was made.

Appeal from Appanoose District Qourt. — Hon. M. A. Roberts, Judge. Ti-ie petition alleges tbat the defendant employed one Anderson to load slack on cars at a particular side track, at a specified price per car; that the slack was in a pile twenty feet or more high next to this track; that, as taken from the coal mine, it was dumped on the top of the pile, where it burned and smouldered, while the bottom was cool and could be shoveled on the cars; that the defendant, knowing that between the pile and the car was a dangerous place to work, took no precaution to protect the plaintiff or other employes of Anderson; that it did not pour water on the top of the pile to cool it, though this the defendant so promised on plaintiff’s complaint, and plaintiff, by reason of such promise, continued, at such work; that because of defendant’s failure to make the place where plaintiff worked safe, by protecting it from the falling slack on the steep side of the pile, or cooling it with water, a large chunk or mass fell or slipped down, striking him on the arm and injuring him; that he knew nothing of the danger referred to; and he asks damages. The defendant demurred to the petition on the ground that it affirmatively appeared that plaintiff was not the servant or employe of the defendant, or under its control, at the time he claims to have been injured, but was the servant and was an employe of an independent contractor of the defendant. This demurrer was sustained, and, the plaintiff electing to stand thereon, judgment was rendered dismissing tbe petition, and be appeals.