50 Iowa 680 (Iowa. 1879), Baldwin v. The C., R. I. & P. R. Co.

Citation:50 Iowa 680
Opinion Judge:SEEVERS, J.
Party Name:BALDWIN v. THE C., R. I. & P. R. CO
Attorney:Wright, Gatch & Wright and Rising, Wright & Baldwin, for appellant. Sapp, Lyman & Ament, for appellee.
Court:Supreme Court of Iowa
 
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Page 680

50 Iowa 680 (Iowa. 1879)

BALDWIN

v.

THE C., R. I. & P. R. CO

Supreme Court of Iowa, Des Moines

June, 1879

Appeal from Cass Circuit Court.

FRIDAY, APRIL 25.

THE plaintiff, claiming to be an employe of defendant, whose duty it was to couple and uncouple cars, was injured while engaged in the performance of his duty, without fault on his part, but through the fault and negligence of the defendant, as he claims.

The act of negligence stated in the petition consisted in having on its track cars "the couplings, bumpers or chafing irons, commonly called dead-woods," on which "were not the usual ones in use upon said road, nor such as had been in use thereon at any time during which plaintiff had been" in the employ of defendant; "but that the same were of an old and unusual pattern, not now in use upon the cars of defendant, and were imperfect and defective." While engaged in coupling such cars the plaintiff was injured. There was a trial by jury, verdict and judgment for plaintiff, and defendant appeals.

REVERSED.

Wright, Gatch & Wright and Rising, Wright & Baldwin, for appellant.

Sapp, Lyman & Ament, for appellee.

OPINION

SEEVERS, J.

Page 681

I. The plaintiff had only been working for the defendant three or four days when he was injured. He had no previous experience in the business. There was no evidence tending to show the cars were out of repair. The contrary clearly appeared. There is no dispute but that the cars the plaintiff attempted to couple had at each end double dead-woods on each side of the draft-iron, about a foot from it, and projecting out even with the draft-iron. The evidence did not show the cars to be faulty in their construction in any other respect. They did not belong to the defendant, but had been received on its track in the ordinary course of business from some connecting road. The uncontradicted evidence was that cars constructed as these were used by eastern roads, and were more or less frequently hauled over western roads, including defendant's, being usually employed in the through freight business.

The double dead-woods are not used by western roads generally in constructing their own cars. It was, however, disclosed by the evidence that they are so used by the Illinois Central Railroad. The defendant's cars are constructed with but a single dead-wood on each end, through which runs the draft-iron. It did not appear from the evidence how long the double dead-woods had been used, or how old the pattern was.

The court instructed the jury as follows:

"6. The specific matters which the plaintiff charges against the defendant in this case as negligent are that it had upon its track in its yard, and required him to work about, cars

Page 682

which were improperly constructed, in that they had couplings and buffers of an old and unusual pattern, differing from those usually in use on defendant's road, and different from any plaintiff had...

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