19 N.W. 870 (Iowa 1884), Allen v. Burlington, Cedar Rapids & Northern Railway Co.

Citation:19 N.W. 870, 64 Iowa 94
Opinion Judge:BECK, J.
Party Name:ALLEN v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY
Attorney:J. & S. K. Tracy, for appellant. Dodge & Dodge, and Newman & Blake, for appellee.
Case Date:June 10, 1884
Court:Supreme Court of Iowa
 
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Page 870

19 N.W. 870 (Iowa 1884)

64 Iowa 94

ALLEN

v.

THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

June 10, 1884

Appeal from Des Moines District Court.

ACTION to recover for personal injuries sustained by plaintiff, who was a brakeman in the employment of defendant, and, while in the discharge of his duties, was struck by a cattle-chute, located upon a side track of defendant's road, and thereby thrown to the ground under the cars, which ran over one of his legs, rendering amputation necessary. There was a judgment upon a verdict for plaintiff. Defendant appeals. The case has before been in this court. See 57 Iowa 623.

REVERSED.

J. & S. K. Tracy, for appellant.

Dodge & Dodge, and Newman & Blake, for appellee.

OPINION

[64 Iowa 95] BECK, J.

I.

The plaintiff sustained the injury which is the foundation of the action while engaged, with other train men, in taking cars from a side track upon which a cattle-chute was situated. It became necessary for him to pass the chute while upon a coal car, that he might be ready to go from the car at a proper place, in order to turn a switch. He stood upon the oil-box of the journal of a wheel, and supported himself with one hand, in the other holding his lantern. While in this position, the car passed the cattle-chute, which struck him, and knocked him to the ground, when the wheels of the car passed over his leg. The petition charges that defendant was negligent in constructing the chute too near the track; and the jury in a special verdict so found.

Page 871

II. The defendant asked the district court to instruct the jury that, if the chute was constructed "at the usual distance from the track at which they are usually located on well regulated railroads generally," the defendant was not guilty of negligence. This instruction was refused, and an instruction requested by plaintiff was given, which presented the rule that, if the construction of the chute as to distance from the track conformed to the usual practice in the location of like structures, the defendant could not for that reason be found free from negligence. These rulings upon instructions constitute grounds of objection to the judgment urged by defendant. We think they are correct.

[64 Iowa 96] The usual custom or practice of railroad corporations in operating their...

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