#### John Hamilton, Appellant, v. The Chicago, Rock Island *&*Pacific Railway Company.

Injuring Employe of Railroad: hand car. As a section man and Ms fellow workmen were preparing to start home on the hand car, he stepped upon it and put his hand into the tool-box to 1 deposit his mittens, through an opening in which machinery moved, though there were openings in which it did not move. One of the men started the car without orders from the foreman', and so injured plaintiff’s hand. None of them knew plaintiff’s peril when the car was started. *Held,*plaintiff could not recover.

Same. The car was constructed like all others of the same make. 2 *Held,*that the injury was not due to a defective construction.

*Appeal from Appanoose District Court.*— Hon. W. I. Babb, Judge.

Tuesday, December 18, 1894.

Action to recover damages for a personal injury. Verdict and judgment for defendant. Plaintiff *appeals.*

Affirmed.

The negligence charged against the defendant company is thus set forth in the petition: “That on or about the third day of March,'A. D. 1892, the plaintiff *47was an employe of the defendant, and was engaged in the hazardous occupation of operating, with other employes, defendant’s railway in said county of Appa-noose; that on said date, while the plaintiff was using-due care and caution on his part, engaged, as aforesaid stated, in hazardous occupation of operating a railway, engaged as a section hand, plaintiff got on the handcar, and while in the act of putting his mittens in the box on the hand-car, commonly called the ‘supply box,’ for the purpose of being more able to propel, and before he .could withdraw his hand, his coemployes, Geo. W. Steward, section boss, Frank Nicholson and Robert Coleman, coemployes, or one of them, without using any .care, negligently started said hand-car and said section boss negligently pérmitted said car to be started, on which plaintiff was standing, and before plaintiff could withdraw his hand that the said coem-ployes, without using any care, negligentiy started said car as aforesaid; that the said coemployes, by the exercise of ordinary care, could have seen plaintiff, and could have seen his position if they did hot see him; that said hand-car was started, as aforesaid, while the plaintiff was in the act of withdrawing his hand, and the rod passing up through said supply box on said car and the joint or knuckles on said rod, by reason of starting said car, caught plaintiff’s hand and wrist, and forced the same against the woodwork of the car, or side or end of the supply box, and crushed and mangled the hand and wrist of plaintiff, and injured the same so that the plaintiff will neyer have the use of said hand; and by reason of said injury, plaintiff has been permanently injured.” Plaintiff alleges that he was not negligent In an amendment he charges the defendant with negligence in starting or permitting the car to be started; that the car was defectively constructed, of which fact the plaintiff had no knowledge. The *48defendant denies all of the allegations of the petition and amendment, and avers that plaintiff contributed to the injury. After plaintiff rested, the defendant moved for a verdict, which motion was sustained, and a ver-diet returned accordingly, from which ruling the appeal is prosecuted. '

*Geo. D. Porter*for appellant.

*Cummins*& *Wright*and *Vermillion*& *Vermillion*for appellee.

Kinne, J.

Counsel argue at length the question as to whether the plaintiff in this case is within the protection of Code, Section 1307. In our judgment, a determination of that question is not important, as the injury for which recovery is sought was wholly accidental, The evidence fails to show any negligence on 1 part of the defendant. It is therefore not mate-rial to inquire as to the plaintiff’s negligence. The charges of negligence, in brief, are: In starting or ordering the car started; in using a car defectively constructed. Without attempting to set out the evidence, we may state the substance of it It is difficult to describe the hand-car in question, and the manner of its construction, so that the manner in which the accident happened may be understood. Plaintiff received the injury to his hand and arm while attempting to put his mittens into- a tool box. It appears that the car was constructed so that boards were nailed at the side of the frame supporting and inclosing the lever machinery, about eight inches in height, leaving openings at the sides; and a board was nailed in front of the lever frame, leaving just room enough for the working of the machinery which operated the lever. This box, so made, was used by the section men as a place to put tools which were used by them on the road in their *49work. While the space in front was. only large enough for the working of the machinery, the space at the side was quite large, and there was no danger attending the depositing of articles in the box through this side opening. Plaintiff and the other section men had finished their days work. Most of the tools had been placed upon the car. One other employe besides plaintiff was standing upon the car, and this man was facing plaintiff. The other men stood upon the ground near the car, and the foreman had one foot upon the car, being in the act of getting upon the car when the accident happened. After stepping upon the car, plaintiff took off his mittens, intending to• put them in the tool box, and,' instead of putting them in at the side, he put his hand in below the cog or knuckle and other ironwork which works the lever, and, while his hand was in there, the other man on the car started it. The movement of the car caused the lever to move, and the knuckle of the lever to come forward, catching plaintiff’s hand between it and the board which ran up in front of tjie lever frame, thereby inflicting a painful and serious injury to his hand and arm. The evidence, as we view it, shows without conflict that the section foreman gave no directions at all as to moving the car, and that he did not know of the situation of plaintiff’s hand at the time it was injured. So, without conflict, it appears that neither the man upon the car nor any of his associates who were standing upon the ground knew of plailntiff’s peril. Plaintiff himself testifies that he supposes that Coleman, the man on the car, did not see where plaintiff’s hand was at the time he (Cole-riian) moved the car, and there is no evidence which can be said to tend to show that any of the men either saw that plaintiff’s hand was in a place of peril prior to the injury, or that there was anything in the circumstances surrounding the injury which should be held "to " have *50caused any of the parties to have anticipated that plaintiff’s hand was or might he in a place by reason of which it would be dangerous to move the' car. The car was started in the usual way. The employes were through with their work, and all must have expected that the car would soon be started. It seems to have been one of those unfortunate and not to foe anticipated accidents, for which defendant is not responsible. There is, we think, no evidence whatever of any negligence on part of the defendant in causing or permitting the car to be moved under the circumstances.

2 It is, we think, equally clear that the charged negligent construction of the car was not established. It was shown that these hand-cars were made in different ways, and that different makes were used on some of the railroads. The car seems to hare been constructed as were all others of a like make. The evidence on this point was not of such a character as to warrant the conclusion that the car was in any wise defective in its construction.

No negligence having been shown on part of the defendant, there can be no recovery. The District Court properly directed a verdict for the defendant — ■ *Affirmed.*