Mayes v. Chicago, Rock Island & Pacific Railway Co.

• Citation: 14 N.W. 340,63 Iowa 562
• Parties: MAYES, ADM'R, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO
• Decision Date: 04 June 1884
• Court: United States State Supreme Court of Iowa

14 N.W. 340

63 Iowa 562

MAYES, ADM'R, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO

Supreme Court of Iowa, Des Moines

June 4, 1884

Appeal from Pottawattamie District Court.

ACTION to recover for personal injuries to plaintiff's intestate, resulting in his death. Upon a trial to a jury, a verdict for defendant was rendered in pursuance of instructions directing the jury so to find. Plaintiff appeals.

REVERSED.

M. P Brewer, for appellant.

Wright & Baldwin and Wright, Cummins & Wright, for appellee.

BECK J. ROTHROCK, CH. J.

OPINION

BECK, J.

I.

The petition alleges that William Baker, plaintiff's intestate, while in the employment of defendant as a "switchman or brakesman," was run over by a train of cars, receiving injuries which resulted in almost instant death. It is alleged that the injuries were caused by the negligence of defendant in the construction of its railroad by failing to place blocks between the rails and the guard rails at the switches, and that, in the absence of such blocks, the foot of the intestate, while he was in the discharge of his duty under the employment of defendant, was caught between the guard-rail and the rail of the track, and was held in a position so that an approaching train ran over him. It is alleged that intestate was inexperienced in matters pertaining to the operation of railroads, and had no knowledge of the dangerous character of the tracks, and of the dangers to which he was exposed by reason of the absence of the blocks between the rails and the guard-rails. The answer denies all allegations of the petition. Other averments of the petition need not be here recited.

The evidence tended to show that the intestate came to his death in the manner alleged in the petition; that he had been employed for about six weeks as a night switchman in defendant's station-yard at Council Bluffs; that he was not twenty-one years old at the time of his death; and that he lived upon a farm, and had no experience in operating railroads, prior to his employment by defendant.

After the plaintiff had submitted evidence in his behalf, counsel for the defendant moved the court to direct the jury to return a verdict for defendant, on the ground that plaintiff had failed to sustain the allegations of his petition by sufficient evidence. Thereupon the district court announced its decision in the following opinion:

"The plaintiff having introduced his evidence in chief and rested his cause, the defendant moves the court to direct the jury to return a verdict for it, for the reason that the evidence does not show that the injury to the said Wm. Baker, which caused his death, was occasioned by any negligence or want of ordinary care, either by defendant or its agents or employes, and that the evidence does show that said Wm. Baker, by his own negligence, contributed to his injury, and that, by remaining in defendant's service after he knew the defect in or condition of the track, of which complaint is made, he waived any claim for any injuries which he might maintain by reason thereof.

"There is no evidence at all tending to establish the allegations in the petition, that the engineer in charge of the engine attached to the train at the time Baker was killed moved said train backward at an unusual rate of speed, and that the injury was caused by this mismanagement of the engineer or the train.

"But there is evidence sufficient to give the jury on the allegations of negligence in the matter of the want of blocking between the guard-rail and the main-rail, and the extension of the arms towards the center of the track at right angles with the line of the guard-rails. Whether the construction and maintaining of the guard-rails in this connection is negligence on the part of defendant is a question of fact to be determined by the jury from all the circumstances of the case. So that the motion on this ground is overruled.

"The following facts bearing upon the question of the waiver by Baker of defendant's negligence in the matter of said guard-rail must be regarded as admitted for the purpose of this motion:

"That Baker was a little under twenty-one years of age at the time of the injury.

"That he had been in the employment of defendant for about six weeks before the injury.

"That he was engaged during all this time in the yard where he received the injury, and in the same character of work as that at which he was engaged at the time of the injury.

"That the condition of the guard-rails to which the injury is here attributed existed during all this time, and was apparent to any ordinary observer.

"There is no evidence that Baker ever complained of this condition of the guard-rail, or that he was induced to remain in defendant's employ by any promise that that condition would be changed.

"Upon this state of facts, and they are all the facts material to this question, the court holds as matter of law,--

"1st. That Baker must be presumed to have known of the condition of affairs with reference to said guard-rail.

"2d. That by remaining in defendant's employ with that knowledge and without any complaint, he waived any claim for damages which might have occurred by defendant's alleged negligence in the matter, unless he was induced to remain by some promise that the condition of affairs with reference to said guard-rail would be changed.

"3d. That the burden of proof is on plaintiff to show that Baker had complained of the condition to which the injury is attributed, or that he was induced to remain in defendant's employ by promises that the condition would be remedied.

"It follows, therefore, that the motion must be sustained on the last ground, and the jury are accordingly directed to find for defendant."

Counsel for plaintiff insists that, if it be conceded that the intestate, by remaining in the employment of defendant without objection after discovering the dangers to which he was exposed by reason of the absence of the block between the rails, waived his right to recover for the negligence of defendant, such waiver should have been pleaded as a defense in the action; and, as no such defense was pleaded, the court erred in deciding the case thereon for defendant.

The waiver in question is...