McMarshall v. The Chicago, Rock Island & Pacific R. Co.

• Decision Date: 05 June 1890
• Citation: 45 N.W. 1065,80 Iowa 757
• Parties: MCMARSHALL v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY
• Court: Iowa Supreme Court

45 N.W. 1065

80 Iowa 757

MCMARSHALL v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

June 5, 1890

Decided October, 1890.

Appeal from Lee District Court.--HON. J. M. CASEY, Judge.

ACTION to recover for personal injuries received by plaintiff's intestate, resulting in his death, while in the employment of defendant in the operation of its railroad. The injuries were caused by the negligence of defendant's employes. There was a judgment upon a verdict for plaintiff. Defendant appeals.

AFFIRMED.

Thos S. Wright and Craig, McCrary & Craig, for appellant.

Dodge & Dodge, A. H. Stutsman and Jas. C. Davis, for appellee.

OPINION

BECK, J.

I.

Plaintiff's intestate, A. L. Kern, was in his lifetime in the employment of the St. Louis, Keokuk and Northwestern Railroad Company as a train conductor. He was in charge of a train engaged in moving ice from the canal above the defendant's railway station at Keokuk to an icehouse below. At the time of the accident he detached the engine from the cars in his train, and coupled it "head on" to some box cars. The defendant had a track a few paces south of the track of the St. Louis, Keokuk and Northwestern railroad, upon which the intestate stepped for the purpose of giving or receiving signals from the engineer, or the person in charge of the engine. Defendant's switch engine, which was at the time approaching, struck the intestate, causing his death. The tracks upon which the intestate's train was stopped, and the one upon which he was struck by defendant's engine, were seven or eight feet apart, and were used by the railroad company, whose road entered Keokuk, for the purpose of switching, and the locality is called the "Union Railway Yards" of the city. The petition sets out the cause of action in the following language, which we quote, for the reason that certain questions discussed by counsel arise upon the allegations of the petition. After stating that defendant sues as administrator of Kern, the petition proceeds to allege "that on the eleventh of January, 1887, said Kern was a railway conductor, operating a train on the St. Louis, Keokuk and Northwestern railroad, and, while in the discharge of his duties, in the Union railway yards in the city of Keokuk, and, while in the exercise of ordinary care and caution, was struck, run over and killed by a switch engine belonging to defendant, and operated and run in said yards, on one of defendant's tracks therein, in a grossly careless and negligent manner, in that the kind of engine used was unskilfully constructed, so as to prevent a person on the track in front of said engine being seen by persons in charge thereof, and in not being equipped with proper appliances to enable the speed to be checked within a reasonable time and distance and in that the said engine was run at a high and unlawful rate of speed; and in that the same was managed and controlled by incompetent employes; and in that the said employes failed to see said deceased in time to give any alarm signal, and failed to give the usual and necessary signals of approaching danger, so as to warn deceased of the approach of said engine; that deceased was about thirty-five years of age, a skilled workman, capable of earning large sums of money, and of sound health and industrious habits. Wherefore complainant claims judgment for the sum of twenty-five thousand dollars." The answer, in general language, denies all the allegations of the petition.

II. The questions raised in the case may be more briefly and conveniently discussed by considering them in the order of their presentation by defendant's counsel.

The first objection argued by defendant's counsel is directed at the eighth instruction given by the court to the jury which is in this language: "The degree of care to be exercised by a railroad company must necessarily depend upon the location of the track and the circumstances of the case. In a place not frequented by the public, either by right or permission, expressed or implied, of the company, and in locations where people are not constantly passing about, and where they cannot reasonably be expected to be, persons in charge of a train are not required by law to be on the lookout for them. In such cases, the company is entitled to the exclusive use of the track, and the persons in charge of the train are only required to avoid injury to them if they can do so upon becoming aware of their peril. But when the place is within the limits of a city, in the yard of a company, or yard used by several companies together, or with tracks in close proximity to each other, and employes of companies whose tracks are in close proximity are engaged in the discharge of their duties, the safety of human life requires a different rule; and in this case, if you find that deceased was an employe of one of said roads in the line of his duty, and the employes of defendant were not on the lookout for such persons, and had their engine in possession, or under the control, of an incompetent person, if it was, and were running at a dangerous and unlawful rate of speed, if it was, and the injury was inflicted by reason of the want of proper care on the part of the defendant, if it was, the defendant would be guilty of negligence." It is insisted that this instruction is erroneous, in that it submits to the jury two questions of negligence, thus stated by defendant's counsel: "First, whether defendant's employes were on the lookout for persons on the track; and, second, whether defendant's engine was in the control of an incompetent person." The error of the instruction, in counsel's view, is that the petition is specific in its allegations of negligence, and, as there were no allegations as to the facts suggested by these questions, the inquiries should not have been submitted to the jury by the instruction; in other words, as there were no specific allegations of negligence to the effect that defendant's employes "were not on the lookout," and the engine was not in the control of an incompetent person. As to the first part of the objection, the petition alleges that defendant's employes "failed to see the intestate in time to give any alarm signal." Now, if the employes were not on the lookout, they surely failed to see deceased. A failure to "look out" was, in effect, a failure to see deceased. If the employes failed to look out, they negligently failed to see the deceased. It will be observed that the court quite correctly directed the jury as to the duty of the defendant's employes, at the place where the accident happened, "to look out" for persons on the track. The negligence alleged in the petition is a failure to see intestate. "A failure to see" would follow "a failure to look out." Hence the negligence set out in the petition and the...