Henry v. Sioux City & P. R. Co.

Decision Date23 April 1885
Citation23 N.W. 260,66 Iowa 52
PartiesHENRY, BY HIS NEXT FRIEND, v. SIOUX CITY & P. R. CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from Cherokee district court.

This is an action for damages for a personal injury received by the plaintiff while engaged as a brakeman in coupling cars upon defendant's road. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.Joy, Wright & Hudson, for appellant.

E. F. Gray and E. C. Herrick, for appellee.

ROTHROCK, J.

1. The plaintiff was engaged as a brakeman upon defendant's road upon the run from Missouri valley to the Missouri river. The train-men on that run consisted of a conductor, engineer, fireman, and one brakeman. On the twenty-second day of May, 1882, the run was being made from the river to Missouri valley with a train of about 30 freight cars. When the train arrived at California Junction, a station on the line, orders were received to leave two empty stock cars at that station. Some switching was necessary to set out the stock cars, and put them in the proper position on the side track. Some cars were already standing on the side track and they were moved When the cars had been properly shifted on the tracks, there were five cars attached to the engine which were “kicked” or thrown back upon the side track. After they were thrown off from the engine and while they were in motion the plaintiff climbed upon the last car of the five and ran along the top of the cars and descended the ladder by the forward car and alighted upon the ground when it was within a car and a half or two car lengths from the car standing on the side track, and ran forward and made the coupling. The cars came together with such force that plaintiff was thrown down, and one of his ankles was seriously injured by one of the car-wheels.

The plaintiff claimed in his petition that he received the injury by reason of the negligence of the defendant, its agents and servants, and without any negligence on his part. The negligence complained of in the petition was-- First, failure to employ an adequate number of brakemen on the train to operate the same with safety; second, in the employment of an incompetent engineer; third, in the conductor's ordering plaintiff to couple the cars when thrown or kicked back to other cars standing on the side track, and the failure of the conductor to ride the moving cars back to be coupled, and check their speed with the brakes to enable plaintiff to make the coupling with safety; fourth, that the engineer threw or kicked back the cars with unusual violence.

The court, as we think, correctly charged the jury that there was no evidence that the engineer was incompent, and that there was no evidence to charge the defendant with negligence in failing to furnish a sufficient number of brakemen on the train. The cause then depended upon the two questions: whether there was negligence on the part of the engineer in sending the cars back with unusual violence, or whether the conductor was negligent in requiring the plaintiff to make the coupling, and failing to protect and shield him from injury by following him upon the cars, and checking their speed by the use of the brakes.

The plaintiff claimed in his petition, and testified as a witness, that the conductor expressly ordered him to make the coupling. He did not rely upon the fact that, aside from the order, it was his duty to couple cars which were left upon a switch. The court permitted the plaintiff to introduce evidence to the effect that it was the usual mode of performing the required act to couple the cars left standing on the side track. This evidence was objected to, and an exception was taken to the ruling of the court in admitting it. We think it should have been excluded. It did not tend to corroborate the claim of the plaintiff that he was expressly directed by the conductor to make the coupling, and it could have been introduced for no other purpose. If the plaintiff was directed to make the coupling by his superior in authority, this was warrant enough to authorize the act, and his claim that he was acting in the line of his duty would have been fully sustained without the proof of any usage pertaining to the matter. We cannot hold that the admission of this evidence was without prejudice, because the evidence as to the usage and as to the express direction is in conflict.

2. The plaintiff was also permitted to introduce certain rules adopted by the company pertaining to the duty of train-men in the movement of cars. One of these rules was numbered 44. It had reference to “cars and switching on grades.” The introduction of this rule was objected to by the defendant, and the...

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