#### Charles Mace, by his next friend, Appellee, v. H. A. Boedker & Co., Appellant.

1 Master and servant: negligence of co-employé: operation of railway: statutes. A corporation constructing a temporary-track for operating thereon locomotives and cars for hauling earth used in grading the road, is “operating a railway” within the provisions of Code, section 3071, and a construction company so engaged is liable to an employe for injuries resulting from the negligence of a co-employé.

3 Negligence: submission of issue: evidence. - In an action against a railway construction company for injury to an employé, the *722evidence is reviewed and held sufficient to require a submission of the issue of negligence on the part of the company, in failing to warn and instruct the employé of the danger incident to his service, in failing to provide him with a light, and in negligently operating the construction train.

3 Contributory negligence: submission op issue. The question of reasonable care on the part of an employé in the discharge of his services, where the material facts arg in dispute and not such that all fair minded persons must draw the same conclusion, must be submitted to the jury. Evidence in the case held to require a submission of the issue of reasonable care.

4 Assumption of risk: pleading. Assumption of risk by a servant, which arises from the master’s negligence, is an affirmative defense which must be pleaded in answer and sustained by a preponderance of the evidence.

5 Assumption of risk. Assumption of risk is ordinarily a question of fact, and especially where the servant is young, inexperienced or ignorant and there is doubt as to whether he appreciated the peril.

6 Same. To make the question of a servant’s assumption of the risk one of law, it must be clearly shown that the servant knew, or, as a reasonably prudent person of his age and experience should have known and appreciated the peril to which he was exposed.

7 Submission of issue: harmless error. Error in submitting a question which should have been determined as a matter of law is without prejudice, where a legal determination should have been in accordance with the finding of the jury.

*Appeal from Wapello District Court.-*— ■ HoN. M. A. ROBERTS, Judge.

Tuesday, July 11, 1905.

ActioN at law to recover damages for a personal injury. Verdict and judgment for plaintiff, and defendant appeals.

*Affirmed.*

*McElroy &*McElroy, for appellant.

*Jaques &*Jaques, for appellee.

*723Weavee, J.

It appears without dispute that defendant is an Illinois corporation, and at tbe time of tbe accident in question was engaged in grading a line of railroad for tbe use of another corporation in Wapello county, Iowa. In tbe performance of this work, defendant constructed a temporary track along tbe line of tbe grade, and operated thereon trains of dump cars, moved by small engines, by which device tbe earth excavated from tbe cuts was transported and deposited upon tbe fills. To enable tbe trains to pass each other, switches and side tracks were made use of at convenient points upon tbe line. Tbe plaintiff was first employed by tbe defendant as a water carrier or chore boy, and thereafter was put in charge of one of tbe switches. Tbe work was being carried on day and night, tbe plaintiff being on tbe night shift. During tbe night tbe line was illuminated to some extent by incandescent electric lights. While thus employed on or about August 16, 1902, tbe plaintiff had occasion to go some distance from tbe switch stand to procure a hoe with which to clean the dirt from the frogs, and as he returned he stepped or stumbled in such a manner that his foot was caught between the main rail and switch rail, and before he could extricate himself therefrom an approaching train ran upon or over him in such a manner as to crush his leg and necessitate an amputation. Negligence is charged against the defendant and its employes in failing to properly block the frogs and guard rails of the switch, failing to have a proper headlight upon the engine which moved the train, failing to furnish plaintiff with a lantern by which he could have signaled the engineman to stop the train, failing to stop the train upon signal of a brakeman who had discovered the plaintiff’s peril, and failing to properly instruct the plaintiff as to his duties and the dangers to which he was exposed.-

*724
      1. Master and servant: neglegence of co-employe: operation of railway; statutes.
      *723I. The first and principal contention of the appellant is that it is not a railway company, and at the time of the plaintiff’s injury was not *“*operating a railway,” within the meaning of Code, section 2071, and is therefore not liable to *724tbo plaintiff for any injury be may bave sustained by tbe negligence of bis co-employés. Tbe statute referred to provides tbat “ every corporation . operating a railway shall be liable to its em-*x o- o*• . ployés for all damages sustained in consequence of tbe neglect of willful wrongs, whether of commission or omission, of the agents, engineers, or other employes of tbe corporation, when such negligence or wrong is in any manner connected with tbe use and operation of tbe railway. It is also further provided (Code, section 2039) tbat “ all tbe duties and liabilities imposed by law upon corporations owning or operating railways shall apply to all lessees or other persons owning or operating such railways as fully as if they were expressly named therein and any action which might be brought or penalty enforced against such corporation by virtue of any provisions of law may be brought or enforced against such lessees or other persons.” If, therefore, the appellant, in constructing a temporary track, and operating thereon locomotives and trains for hauling the earth used in building the grade, was “ operating a railway,” it follows, of necessity, that under the statute cited the fellow-servant doctrine can have no application to this case.

The usual reason advanced in justification of this class of legislation has been that persons so employed are exposed to great and unusual hazard, and in the exercise of its police power the State is justified in making special rules and regulations for their protection. The hazards against which this protection is provided do not depend upon whether the corporation is engaged in transporting passengers and freight for public accommodation. They exist wherever men are employed -to move or operate locomotives and trains from place to place upon a track constructed for that purpose. The work of loading and unloading and coupling and uncoupling cars, the making up and movement of trains, the operation of switches, and all the perils which accompany the handling of these ponderous instrumentalities of transportation, are *725no less great because the owner of the tracks, cars, and engines is employing them in and about some private enterprise, than would be the case if he were doing similar labor by similar means in the capacity of a common carrier. This principle we have recognized in numerous decisions. For instance, it has been held that the use of a locomotive to pull a rope or cable, by which the transfer of iron rails from one car to another was accomplished, was a part of the hazardous business of operating a railroad. *Stebbins v. R.*R. 116 Iowa, 513. A somewhat similar proposition was affirmed in *Williams v. R. R.,*121 Iowa, 270. See, also, *Nichols v. R. R.,*60 Minn. 319 (62 N. W. 386). Still more directly in point is the case of *McKnight v. Construction Co.,*43 Iowa, 406. In that case the defendant company, being engaged in the work of building a railroad for another corporation, was sued by an employe for injuries occasioned to him by the negligence of a fellow servant, in the management of a gravel train used in hauling material for the grade. There, as in the present instance, the defendant insisted that, within the meaning of the statute, it was not operating a railway, and, in pursuance of that theory, asked the court to instruct the jury as follows:

> (1) . . . If you find that defendant was engaged only in the business of filling the roadbed, constructing side tracks and riprap, such business would not constitute defendant a corporation engaged in operating a railroad. (2) The mere fact that defendant used a train of cars propelled and operated by a steam locomotive for the purpose only of hauling gravel or other material to fill up the trestlework where the injury complained of took place does not prove that defendant was engaged in operating a railroad.

These instructions, it .will be noticed state in apt.and clear terms the substance of the rule for which appellant here contends. ' The trial court refused these requests, and instructed the jury as follows:

> If you find that the defendant at the time of the injury *726complained of was operating the train on its own account for the purpose of constructing the railroad in question, then, for the purpose of this suit, it was operating a railroad. . If you find that the defendant at the time of the injury was operating the train in question-on its own account, and that plaintiff was an employe of the defendant on said train, and that by the negligence of the defendant he was thrown from the train and injured, and that he did not by his own negligence contribute to the causes which produced his injury, then he is entitled to recover.

The plaintiff recovered judgment, and on appeal the rulings of the trial court were upheld as correct statements of the law. We think there is no logical distinction to be drawn between the rule there approved and the one applied .by the district court in the trial of the case now before us. To hold with the appellant on this question is to overrule the precedent furnished b'y the McKnight Case* and this we are unwilling to do. The words used by Adams, J., in the opinion referred to, may well be adopted by us as applicable to the facts presented by the present record:

> The defendant was not operating a railroad in the sense of doing the business for which it was designed — the carrying of passengers and freight. It was merely running trains over it as a part of the means employed in building it. . . . If we were to throw out of consideration the spirit and object of the statute, and look only to a critical construction of its language, we might concede that it would bear the meaning which the appellant would put upon it. The Legislature, however, has seen fit, in consideration of the exceptional hazards of the business of operating a railroad, to abrogate in respect to that business the common-law rule that an employe cannot recover against his employer for an injury received through the negligence of a co-employé. The running of a special train over a railroad is operating it, in a restricted sense. For such a purpose, as well as in the general business of the road, a number of persons must be •employed, each dependent for his safety upon the skill and fidelity of others. We are of the opinion, therefore, that the Tunning of special trains over a railroad by a construction *727company, in constructing it, is operating the railroad, within the meaning of section 1301 of the Code of 1813.

This conclusion appears also to have the support of the better reasoned cases to which our attention has been called from other jurisdictions. *Schus v. Powers-Simpson Co.,*85 Minn. 447 (89 N. W. Rep. 68); *Kline v. Iron Co.*(Minn.), 100 N. W. Rep. 681; *C. K. W. R. Co. v. Tottan, 1*Kan. App. 558 (42 Pac. Rep. 269); *Roe v. Winston,*86 Minn. 77 (90 N. W. Rep. 122); *Johnson v. R. R.,*43 Minn. 222 (45 N. W. Rep. 156, 8 L. R. A. 419). See, also, *Glandon v. R. R.,*68 Iowa, 457. In the Kline Case, above cited, the defendant was operating a narrow-gauge line, with light engines and dump cars, for the purpose of excavating and removing earth, substantially after -the manner described in the present case. Under a statute not so broad in its language as our own, the Minnesota court held that the defendant was operating a railroad, within .the meaning of the law. That court insists with much force that the law which abrogates the fellow-servant doctrine as to railway business can be held constitutional and valid only because of the peculiar hazard attaching to such employment, and that, therefore, in applying the statute, we have to inquire not whether the defendant is a railroad corporation in the general sense of the term, but whether the labor in which the employe was engaged at the time of his injury was such as exposed him to the hazards which are peculiar to the operation of a railroad. ' As tersely put by Mitchell, J., in the Johnson Case, *supra: “*If a distinction is to be made as to the liability of employers to the employes, it must be based upon a difference in the nature of their employment, and not of their employers. One rule of liability cannot be established for railway companies merely as such, and another for - other employers under like circumstances.” It is to be conceded that the courts are perhaps not in entire harmony on this proposition, but the difference has apparently been brought about by varying interpretations of local statutes.

*728The cases coming the nearest to sustaining the contention of the appellant are *Williams v. Lumber Co.*(C. C.), 113 Fed. 382; *McKivergan v. Lumber Co.*(Wis.), 102 N. W. 333); *Ellington v. Lumber*Co., 93 Ga. 53 (19 S. E. 21); *White v. Kennan,*83 Ga. 343 (9 S. E. 1082); *Railey v.*Garbutt, 112 *Ga.*288 (37 S. E. 360). It appears that the statutes modifying the fellow-servant rule in Wisconsin and Georgia make it applicable to “ railway corporations *”*only, and the courts of those States are inclined to the view that, unless the employer is in fact a corporation owning or operating a line of railway doing business as a common carrier, it is not within the scope of the statute. Our statute, unlike those of Georgia and Wisconsin, is not confined, to “ railway corporations/' but extends to *“*every corporation ” or “ person ” operating a railway. Code, sections 2039, 2071. And unless we are to emasculate the statute by construction, every corporation or individual undertaking to do business or carry on a work which exposes its employes to the hazards peculiar to railway operation, whether it be in the common carriage of freight and passengers, or confined to the transportation of materials for the private use, advantage, or benefit of the proprietors, must be held liable for the negligence of its employes in and about such business. In short, the liability of a defendant under the statute depends alone upon the nature of the hazard to which the employe is exposed, and not upon the technical character or purpose of the business being done by the employer. Most of the authorities cited by the appellant upon this branch of the controversy are cases in which the courts have held that statutes relating generally to the regulation of railroads and railroad companies are not applicable to street railways. But we do not regard these cases as in point. Street railways, as they existed at the date of this legislation, did not come within the reasons which underlie and support Code, section 2071, and other statutes of like nature. “ Employes on such roads are not exposed to such hazards, risks, and dangers as are the employés of railroad *729corporations proper.” *Schus v. Powers-Simpson Co., supra.*Street railway corporations do not ordinarily operate long or heavy trains. Tbeir cars are run at comparatively low rates of speed, are easily controlled, and, generally speaking, tbeir employes are exposed to neither the kind nor the degree of hazard which is encountered by one who works upon and about a railroad, where heavy trains operated by steam locomotives are made use of.

There was no error in the rulings of the trial court in this respect.

2. Negligence: submission o£ issue; evidence, II. We ai;e unable to agree with counsel for the appellant that there is no evidence of negligence on its part. It may be noted at this point that the court did not submit to the jury the question of the defendant’s -¶-¶ i t* • . tin , i alleged negligence m tailing to block the switch, but confined its investigation to other charges. The evidence tends to show that plaintiff was • a boy who had been reared upon a farm, and, until entering the defendant’s service, had no experience in operating a switch, or in other work upon or about a railway, and that he was placed in charge of the switch, and had continued therein without any warning or instructions from the defendants or others concerning the danger of such accidents as that in which he was injured. There was also testimony from which' the jury might have found that the engine which ran over plaintiff was not supplied with any headlight, except an ordinary lantern; that plaintiff, although he had applied for one, had been given no lantern for use in and about the work, or for signaling approaching trains; and that the brakeman upon the train discovered the plaintiff’s danger and signaled the train to stop in time to have prevented the injury, had proper care been exercised. It is true that some of these propositions, and particularly the last mentioned, were vigorously denied by the appellant’s witnesses, but as to none of them was there such an absence of testimony as would justify the court in refusing to submit the question *730to tbe jury. It may be trae, as contended, by counsel, that reasonable care for the lives of its employes did not require the defendant, in operating its line at night, to provide any headlight for its. engine, or to anticipate the possibility that a boy placed in charge of the switch, without a lantern to guide his steps, might be caught in a frog or angle of the converging rails; but we are not disposed to announce it as a rule of law applicable to all cases. In this as in most other cases the question of reasonable care depends upon the peculiar circumstances attending the particular act or omission under consideration, and is for the determination of the jury-

3. Contributory negligence submissionof issue. So,, also, as to the question of contributory negligence. The rule stated by counsel, that plaintiff was “ required to use all reasonable care to acquaint himself with the nature kis employment, the work he was engaged in, and the dangers to be guarded against,” may be accepted as embodying the law applicable to the case; but unless the material circumstances are undisputed, and such that all fair-minded intelligent persons must draw therefrom the same conclusion, it still remains for the jury to sa[y whether he was in fact in the exercise of ordinary and reasonable care for his own safety. His minority and inexperience did not relieve him of the duty of exercising such reasonable care, but reason and justice do not require from the young and unsophisticated the same soundness of judgment or quickness of apprehension as may properly be expected in persons of maturer years and wider experience. Whether, in view of all the circumstances, plaintiff exercised the reasonable care which may fairly be demanded of boys of his age and experience is peculiarly a fact question, on which the court could not have directed a verdict without palpable invasion of the province of the jury.

*731
      4. Assumption of Risk: Pleadings.
      *730III. Appellant argues that the court should have held, as a matter of law, that plaintiff assumed the risk of such in*731juries as be claims to bave sustained. Assumption of tbe risks arising from tbe negligence of tbe defendant is an affirmative defense, wbicb tbe defendant must plead in answer, and sustain by a pre-

1 ponderance of tbe evidence. *Sankey v. R. R.,*118 Iowa, 39. Tbe charge of negligence as to tbe construction and care of tbe switch having been withdrawn from tbe jury by tbe trial court, it is quite doubtful whether tbe answer presents any issue of assumption of risk, as applied to tbe other charges made in the petition. Tbe plea as stated expressly and specifically alleges that tbe risk assumed by tbe plaintiff, and through wbicb be suffered- injury, was one wbicb was “ ordinarily incident to tbe employment ” in wbicb be was engaged. It is scarcely necessary for us to suggest that tbe risks thus assumed by tbe employe do not include those arising out of tbe negligence of the master. *Moran v. Harris,*63 Iowa, 395; *Knapp v. R.*R., 71 Iowa, 41; *Conners v. R. R.,*74 Iowa, 383,

5. Assumption of Risk. But waiving tbe question of pleading, we still find no error in the refusal of tbe trial court to bold that an assumption of tbe risk arising from defendant’s alleged negligence. bad been conclusively shown by tbe evidence. As .already suggested, tbe defense is one upon wbicb the employer must assume the burden; and, in tbe absence of exceptional circumstances not here appearing, it must go, with tbe questions of negligence and contributory negligence, to tbe jury. This is especially true where tbe plaintiff is young, inexperienced, or ignorant, and there is any room for doubt whether be fully appreciated tbe perils to wbicb be was exposed by the defendant’s alleged negligence. See *Shebeck v. Cracker Co.,*120 Iowa, 414, and *Woolf v. Nauman,*103 N. W. Rep. 785.

*732
      6. Same.
      *731Indeed, about the only reason urged in argument for holding as a matter of law that tbe risks were assumed by plaintiff was bottomed upon tbe proposition that plaintiff bad been in tbe employ of the defendant about three months be*732fore bis injury, and must bave seen and known bow tbe business was conducted, and tbe dangers to wbicb 7 , he was exposed, and, by continuing m the employment, waived bis right to object to tbe matters now complained of. But it must be remembered that be came to tbis work a young boy, without any practical knowledge or experience by wbicb to measure or pass judgment upon tbe methods employed by tbe defendant in managing its line and moving its trains; and it would not be at all unnatural for him to accept those methods as being up to tbe standards of good railroading, until by increased experience and observation be ought, as an ordinarily reasonable and prudent person of bis years, to bave learned otherwise. Before tbe defense of assumption of risk is available, it must appear that tbe plaintiff both knew and appreciated, or as a reasonably prudent person of bis age and. experience, ought to bave known and appreciated, tbe peril to wbicb be was exposed by reason of tbe alleged negligence of tbe defendant and its employes. *Shebeck v. National Cracker Co., supra.*In our judgment, tbis fact is not so clearly established as to make tbe question one of law for tbe court.

7. Submission of issue: harmless error. IV. Tbe exceptions to instructions given and refused are very numerous, and their examination in detail is impracticable. It is sufficient to say that the criticisms made by counsel are in most respects based upon *d*. . , propositions of law upon which we bave already ruled in the preceding paragraphs of tbis opinion, and do not require farther statement or discussion. Ve may say, however, that conceding, for tbe sake of tbe argument, that it was error for tbe court to submit to tbe jury tbe question whether tbe defendant was engaged in “ operating a railway,” it was nevertheless error without prejudice, for, if tbe question is to be held one of law, then we think tbe court should bave decided it, as did also tbe jury, in tbe affirmative.

*733Tbe ease appears to have been fairly tried, tbe record-■develops no prejudicial error, and tbe judgment of tbe district court is therefore *affirmed.*