Quackenbush v. Chi. & N. W. Ry. Co.

• Decision Date: 15 December 1887
• Citation: 35 N.W. 523,73 Iowa 458
• Parties: QUACKENBUSH v. CHICAGO & N. W. RY. CO.
• Court: Iowa Supreme Court

73 Iowa 458

35 N.W. 523

QUACKENBUSH

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

December 15, 1887.

Appeal from district court, Hamilton county; S. M. WEAVER, Judge.

Action by John E. Quackenbush to recover for a personal injury, alleged to have been sustained by the plaintiff while a passenger on one of the defendant's trains. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.Hubbard, Clark & Dawley, for appellant.

W. J. Covil and W. Martin, for appellee.

ADAMS, C. J.

The plaintiff was riding in a caboose. A stationary seat had been provided around the side of the car for the accommodation of passengers, but the plaintiff, at the time of the accident, was sitting in a chair. The caboose was a part of a train standing upon the track. Other cars, somewhat heavily loaded, were brought upon the track to be coupled to the part of the train which included the caboose. The moving cars were thrown back with such force against the standing cars that the plaintiff, while sitting in a chair in the caboose, was thrown against the stove, and received an injury upon the nose which is the injury for which the action is brought.

1. The defendant insists that the verdict is without support, in that there was no evidence tending to show negligence on the defendant's part. The plaintiff's allegation of negligence, as contained in his petition, is in these words: “Said negligence was caused by the defendant's servants in switching or otherwise moving cars. While the car in which the plaintiff was a passenger was standing upon the track, with other cars forming part of the train, a number of heavily loaded cars were backed at great speed against said standing cars, causing said cars to come suddenly and with great force against the car in which the plaintiff was a passenger, whereby he was thrown from his seat in the car violently forward upon the stove in the car.” The defendant does not deny that the plaintiff was thrown from his seat upon the stove by reason of the moving cars being thrown against the standing cars; but it insists that there was nothing in this tending to show negligence. The defendant's contract was to carry the plaintiff safely, if it could do so in the exercise of the strictest care. Now, the evidence shows that the moving cars could have easily been moved back in such a way as not to injure the persons in the caboose. We think that the finding that the defendant was guilty of negligence is abundantly supported.

2. The next position taken by the defendant is that the undisputed evidence shows that the plaintiff, by his own negligence, contributed to the accident. The fact relied upon is that the plaintiff was sitting in a chair. It is said that a chair was a dangerous thing to sit in in such a place, and that the plaintiff should have avoided it, especially as abundant sitting accommodations had been provided by stationary seats around the side of the car. It is not to be denied, we think, that, in case of any sudden and violent propulsion of the caboose, a chair, not fastened to the floor or otherwise secured, was less safe than the seats around the sides; but it is not easy to discover what the chair was in the car for if not as a seat. We think that the plaintiff was justified in inferring that it was placed there as a seat, and, if so, that the defendant would so manage its train in switching as not to throw a passenger or any other person from the chair upon the stove. We cannot say that the plaintiff was guilty of contributory negligence.

3. Evidence was introduced by the plaintiff for the purpose of showing that the injury which he received upon...