Swaim v. Chi., R. I. & P. Ry. Co.

• Decision Date: 22 October 1919
• Docket Number: No. 32972.,32972.
• Citation: 187 Iowa 466,174 N.W. 384
• Parties: SWAIM v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

187 Iowa 466

174 N.W. 384

SWAIM

v.CHICAGO, R. I. & P. RY. CO.

No. 32972.

Supreme Court of Iowa.

Oct. 22, 1919.

Appeal from District Court, Appanoose County; C. W. Vermillion, Judge.

Action at law to recover damages for personal injury. There was a trial to a jury, and verdict and judgment for plaintiff. The defendant having taken an appeal to this court, an affirming opinion was handed down at the January term, 1919. See, Swaim v. Railroad Co., 170 N. W. 296. Thereafter a petition for rehearing was granted and the cause has been resubmitted, with additional arguments. Affirmed.Porter & Greenleaf, of Centerville, and F. W. Sargent and J. G. Gamble, both of Des Moines, for appellant.

Howell, Elgin & Howell, of Centerville, for appellee.

WEAVER, J.

The plaintiff was a member of a section gang in the employ of the defendant. In this labor he was associated with one Amberg and others, and in their work they were under the command or direction of a foreman. On the occasion in question, plaintiff and Amberg and perhaps others were engaged in ballasting or repairing the track, each using what is spoken of in the record as a “tamping pick.” This tool was made somewhat after the fashion of the common pick, except that while one prong was drawn to a comparatively sharp point, the other was finished with a squared or flattened head. Plaintiff and Amberg were about eight feet apart using the blunt ends of their picks to drive the broken stone, used for ballasting material, under the cross-ties. The method adopted by them in this respect appears to have been usual and proper in such work. It is the claim of the plaintiff that while so employed, a stone was broken or shattered under a blow by the pick in Amberg's hands, and that a fragment of such stone, so driven through the air, struck him in the eye, causing him serious injury. He charges the defendant with negligence in respect to this injury as follows: That it was the defendant's duty to furnish to its workmen reasonably safe and suitable tools for the work they were required to perform, and to keep the same in suitable repair; that it failed in this duty with respect to the tamping pick supplied to Amberg by the use of which plaintiff claims to have been injured; that said pick had become worn and rounded upon its blunt or squared end by reason of which a stone broken under its stroke had a tendency to fly off and thereby become a source of danger to any one within reach of the flying fragments; that this condition was known to the foreman having charge of the work and of the men; and that the need of repair had been expressly called to the attention of the foreman, and he had promised to attend to it promptly, but had failed so to do when the injury occurred.

The defendant took issue on the charge made in the petition denying negligence and pleading that the risk of injury because of the condition of the pick was assumed by the plaintiff. It appears in evidence that these picks become rounded or beveled with use, and it was the practice of the foreman to gather them up at intervals of about 30 days and send them to the company's shops for repair. It is also shown without material dispute that when such worn and impaired tools are used in tamping, the danger from flying fragments of stone is materially increased. The fact that the pick in question was worn and out of repair is not seriously denied, nor can it be contended that defendant did not know the fact. The foreman concedes that Amberg had complained of the pick used by him. It also appears that it was the custom of the foreman himself to take charge of the tools at the end of each day's work and reissue them on the following day; hence they were constantly under his personal observation and inspection.

Indeed we do not understand appellant to contend that the record is without evidence to sustain a finding that it was negligent, but it denies legal liability on the ground: First, that even if there was negligence on defendant's part there is no evidence on which to find that it was the proximate cause of plaintiff's injury; and, second, that in any event plaintiff must be held to have assumed the risk of injury from the use of the tamping pick; and, third, that the tamping pick described is a simple tool, requiring only muscular strength in its use, and plaintiff must be held to have known the dangers, if any, incident to its use, and if there was any negligence in failing to make repairs, such need was clearly apparent to him, and he cannot be heard to say that by remaining in the defendant's service he did not take upon himself the risk arising therefrom.

[1][2][3][4][5] I. Upon the question of proximate cause, we are satisfied that if the defendant may be held chargeable with negligence with respect to the admittedly defective condition of the pick and its use in such condition, then the evidence is quite sufficient to sustain a finding that such neglect was the proximate cause of the injury. Practically all of the witnesses on both sides experienced in such work and the use of such tools unite in saying that while the implement is in proper condition there will be some breaking of stone under its blows, yet the fragments do not as a rule fly to any considerable distance, and the course of their flight, if any, is low or downward, but as the striking face of the pick becomes worn and beveled or rounded the quantity of fragments so produced is increased, and their course through the air is at a higher angle. The increase in the production of flying fragments by the use of a round-faced pick as compared with a pick in proper condition is placed by some of the witnesses in the proportion of four to one, while others say “a half more.” True, the effect of this testimony was sought to be weakened by cross-examination, but how far its weight or credibility was thereby affected was for the consideration of the jury. Proximate cause is not always capable of direct proof. Indeed more often than otherwise it is a matter of deduction or natural inference from the circumstances appearing in evidence. It is no answer to the plaintiff's claim in this respect to say that fragments of rock will sometimes fly under the impact of a pick in perfect condition and it is therefore possible for plaintiff to have received the injury of which he complains even if the pick in question had not been defective. Absolute certainty of proof is not required and indeed is rarely obtainable. As it has been stated by this court: “Proximate cause is probable cause; and the proximate consequence of a given act or omission as distinguished from a remote consequence is one which succeeds naturally in the ordinary course of things.” Watson v. Dilts, 116 Iowa, 252, 89 N. W. 1069, 57 L. R. A. 559, 93 Am. St. Rep. 239; 1 Thompson's Negligence, 156.

And this is true although the result produced may not have been anticipated. Osborne v. Van Dyke, 113 Iowa, 557, 85 N. W. 784, 54 L. R. A. 367. Nor will the fact that some other cause operates with the defendant's negligence to produce the injury relieve the defendant if the injurious result is traceable in some material degree to his want of due care. Gould v. Schermer, 101 Iowa, 582, 70 N. W. 697;Langhammer v. Manchester, 99 Iowa, 295, 68 N. W. 688.

It is true that if under all the proved circumstances the conclusion that the injury was the proximate result of defendant's negligence is no more reasonable or probable or likely than that it was brought about by some other cause for which the defendant is not responsible, then, of course, the plaintiff has failed to establish a fact without which he cannot recover. No well-considered precedent goes any further than this, and the theory sometimes urged in cases involving this question, that proof of proximate cause by circumstantial evidence must clearly and satisfactorily exclude the possibility of all other causes, is wholly untenable. We had occasion to consider this question in Lunde v. Cudahy Packing Co., 139 Iowa, 688, 117 N. W. 1063, where we said:

“While plaintiff cannot recover upon a case which does no more than show a possibility that the injury is chargeable to the defendant's negligence, he is not bound to prove either the negligence or the proximate cause beyond a reasonable doubt. Such a rule would work an absolute denial of justice in a great majority of cases. Proximate cause is, under all ordinary circumstances, a question of fact; and, where it depends upon circumstances from which different minds might reasonably draw different conclusions, or where all the known facts point to the negligence of the defendant as the cause, the submission of the question to the jury affords no ground for assignment of error by such defendant.”

Also:

“If the plaintiff do no more than to show a state of facts which is equally consistent with the theory of due care on the part of the defendant, then of course he must fail. Neal v. Railroad Co., 129 Iowa, 5 [105 N. W. 197, 2 L. R. A. (N. S.) 905];Huggard v. Refining Co., 132 Iowa, 736 ; O'Conner v. Railroad Co., 129 Iowa, 636 . But he is not bound to exclude the possibility that the accident might have happened in some other way, for that would be to require him to make his case beyond a reasonable doubt. He is only required to satisfy the jury, by a fair preponderance of the evidence, that the injury occurred in the manner he contends it did.”

Of course a party charged with negligence is not to be held liable in damages upon any mere conjecture that his negligence was the proximate cause of an injury, but when there is evidence from which such proximate cause may reasonably be found it is for the jury to determine the fact. The rule is well stated by the Michigan Court in Schoepper v. Chemical Co., 113 Mich. 582, 71 N. W. 1081, where it says:

“Defendant's counsel contend that the cause of this explosion is a matter of mere conjecture, and it is said by counsel that it is not enough for...