Chase v. Burlington, C.R. & N.R. Co.
| Decision Date | 07 September 1888 |
| Citation | 39 N.W. 196,76 Iowa 675 |
| Parties | CHASE v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Decided January, 1889
Appeal from Poweshiek District Court.--HON. W. R. LEWIS, Judge.
ACTION to recover for damages sustained by plaintiff, and alleged to have been caused by negligence on the part of defendant. The cause was tried to a jury, and a verdict returned in favor of plaintiff for $ 12,500. A motion for a new trial was overruled, and a judgment rendered in favor of plaintiff for the amount of the verdict. Defendant appeals.
REVERSED.
S. K Tracy, for appellant.
Scott & Clute, for appellee.
The plaintiff was employed by defendant in its yards at Cedar Rapids, in the business of switching cars. He received the injury of which he complains on the night of the thirty-first day of August, 1887, while engaged in the line of his duties. The switching crew of which he was a member consisted of the foreman, under whose directions the switching was done, the engineer and fireman, and plaintiff and another person, who were known as "car-catchers." In addition to these men there was an employe whose duty it was to throw the switches. It was the duty of the foreman to check the train to cut off the cars, and to inform the switch-thrower as to the tracks on which he wished them placed. It was the duty of the car-catchers to ride the cars cut off by the foreman until their destination was reached, to prevent their doing damage, to couple them to other cars when necessary, and to notify the switch-thrower when the cars failed to clear other tracks. It was the business of the switch-thrower to throw the switches under the direction of the foreman, to see that the cars thrown onto one track should clear all others, and, when the track upon which the foreman desired to switch a car was clear for that purpose, to give notice of that fact. At the time of the accident the car-catcher employed with plaintiff had taken charge of a "cut," and was engaged in making a coupling before the cars had ceased to move. A car was cut by the foreman, which it was the duty of plaintiff to ride. It was thrown onto a track next to the one where his companion was engaged in coupling, and plaintiff commenced climbing up the forward ladder to reach the top of the car. When he was part way up, his car collided with the rear car of the "cut" on the next track. This had not been thrown far enough from the switch to clear the car of plaintiff, and the result was that plaintiff was caught between the cars of the two cuts in such a manner that his right leg was broken and permanently disabled.
I. The plaintiff was injured while attempting to reach the top of a car of the Chicago, Rock Island & Pacific Railway Company. The evidence tends to show that all box-cars of that company are furnished with ladders at the ends, while all similar cars of defendant have the ladders on the sides; also that the accident would have been less likely to happen in daylight. It is contended by appellant that the injuries to plaintiff resulted from the position of the ladder which he was climbing, or from the darkness, or from both causes combined; and that, since defendant was not responsible for either cause, it is not liable in this action, and that the court erred in refusing to give certain instructions to that effect. The instructions asked and refused ignore the fact that, if plaintiff acted with proper care on his part, and the accident was due to the negligence of another employe, which caused the car of plaintiff to be thrown onto a track which was not clear, then defendant would be liable.
II. The defendant asked the court to give to the jury an instruction as follows: "If you find from the evidence that there was a ladder on each end of this car, then it was his duty to adopt the safer course in getting upon this car; and if he would have escaped injury by getting upon the rear ladder then it was his duty to adopt the safer way of doing the work; and if he did not do so, and was injured in consequence thereof, then he cannot recover." The refusal of the...
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