McKee v. Chi., R. I. & P. Ry. Co.

• Decision Date: 23 October 1891
• Court: Iowa Supreme Court
• Parties: MCKEE v. CHICAGO, R. I. & P. RY. CO

83 Iowa 616

50 N.W. 209

MCKEE

v.CHICAGO, R. I. & P. RY. CO

Supreme Court of Iowa.

Oct. 23, 1891.

Appeal from district court, Wayne county; J. W. HARVEY, Judge.

Action to recover damages alleged to have been caused by the negligence of defendant. There was a trial by jury, and a verdict and judgment in favor of plaintiff. The defendant appeals.

BECK, C. J., dissenting.Freeland & Miles, Cummins & Wright, and Thos. S. Wright, for appellant.

Geo. Hall, for appellee.

ROBINSON, J.

In September, 1888, Joseph M. Brown was in the employ of defendant as brakeman on a freight train. The division on which he worked extended from Trenton, in Missouri, to Eldon, in this state. On the 20th day of the month named, he left Trenton with his train. When it reached the vicinity of Numa he was in the caboose, and, observing stones which appeared to be thrown from the track under the second car from the caboose, he went forward to ascertain the cause. He first went down on the north side of the car, and then climbed back, and went down on the south side by means of the side ladder. While hanging low on the ladder, with his back towards the locomotive, looking under the car, his head came in contact with a wing fence at the end of a cattle-guard, and he was instantly killed. This action is brought by the administrator of his estate to recover the resulting damages.

It is claimed by plaintiff that the defendant was negligent in allowing the fence to be placed so near the track as it was, and that decedent was killed in consequence, and without fault on his part. Defendant denies the alleged negligence on its part, and the alleged absence of negligence on the part of decedent, and alleges that he had been employed by defendant on the part of its road where the accident occurred for several years; that during that time the fence and cattle-guard of which complaint is made were not changed, and were like the other cattle-guards and appurtenances along that part of its road,--all of which was well known to decedent long prior to his death.

1. The court charged the jury as follows: “It is the duty of a railroad company, as regards its employes, to use all ordinary care and supervision to keep its road-way, for the operation of its trains by its employes, in a good and safe condition, so that the employes may not be exposed to unnecessary hazards in the operation of its trains.” “The deceased * * * had a right to assume that the defendant would use all reasonable care in the keeping of its road in a good and safe condition for the operation of its trains by its employes. * * *” Defendant complains of the portions of the charge quoted, on the ground that they require defendant to keep its road in a safe condition, while the rule is that it must be kept in a reasonably safe condition. We do not think the jury would so understand the charge. It instructed them that it was the duty of defendant to use all ordinary and all reasonable care and supervision to keep its road-way safe, and that, we think, is the law. If the road could have been made safe by such means, then it was the duty of defendant to make it so.

2. The only charge of wrong against defendantis that it negligently placed the fence with which decedent came in contact too close to the track. That it was a proper appurtenance of the road is not questioned. The evidence shows that all the cattle-guards and cattle-guard fences along the line of defendant's railway, upon which decedent had been employed, were constructed substantially alike. As we understand the record, each cattle-guard was made by digging a pit across the road-bed, about eight feet wide and two feet deep. Across the pit were placed timbers, and on them were laid ties from twelve to fourteen feet in length. At each end of the ties was constructed a wing fence eight feet in length, parallel to the track. It was made of two posts, and boards nailed thereon, and to its center was attached the right-of-way fence. The posts of the wing fences inclined outward somewhat, but, as a rule, were nearly perpendicular to the surface of the earth, and were from three feet five inches to four feet seven inches from the rails. The fence which caused the accident in question was three feet ten inches from the rail at the bottom, and inclined outward at the top three inches. There is no competent evidence that it was improperly constructed or located. Certain rules of defendant, designed for the guidance of its track repairers, were, however, introduced in evidence, over the objections of defendant. One of the rules so introduced is as follows: “(2) They must see that no lumber, wood, stone, materials, or tools are placed, at any time, within five feet of the rail, and that all gravel and ballast is leveled so as not to endanger the safety of the trains.” It is urged by appellee that this rule is evidence that a wing fence should not be placed within five feet of the track, and it is claimed that, if the one in question had been placed that distance from it, the accident would not have occurred. But the rule cannot be given the effect claimed for it. It evidently does not refer to permanent structures, but to loose tools and materials. There would be good reason for requiring articles which might be readily moved by the wind, by animals, or other cause, without the concurrence and against the wish of defendant, to be placed further from the track than appurtenances of the road, which are permanently attached to the earth or road-bed. Other rules required the track repairers to examine their sections daily to ascertain if the track was safe, and to observe closely the fences, and to keep them and the cattle-guards in good repair. It is not claimed that the fence in question was not in good order, and the rules gave the repairers no authority to move it. The rules were therefore improperly admitted. The jury were instructed that they could not presume negligence from the fact that the accident occurred, but there was no other evidence of such negligence.

3. It is said, however, that the cattle-guard and fence could, with reasonable care, have been so constructed that decedent would have passed the fence in safety. That may be conceded, and the question then arises whether the accident was of such a nature that defendant should have guarded against it. The stones and ballast which had attracted the attention of decedent, and caused him to descend the ladder on the side of the car, and look under it, were thrown out by a brakebeam which was down and dragging. The evidence shows that, in operating trains, it sometimes happens that a brake-beam or other appurtenance of the trucks of a car gets out of order. When there are indications that such a state of affairs exists, it is the duty of the brakeman who discovers it to report the fact to the conductor, and under his direction to ascertain what, if anything, requires attention, and, if necessary, to stop the train. To make the required examination, it may be proper for the brakeman to descend the ladder at the end or on the side of a car, and look under it while the train is in motion. But the evidence does not show that such an event is of common occurrence, and it does show without contradiction that it is not customary for a brakeman to descend the side of a car while it is in motion between stations. It does not appear that any accident caused by the location of a wing fence had ever happened on the road of defendant before that in question, although its road had been operated many years.

The undisputed facts of this case bring it within the rule announced in Koontz v. Railway Co., 65 Iowa, 226, 21 N. W. Rep. 577. The facts involved in that case were substantially as follows: A train of the defendant was stopped on a bridge because the engineer supposed that some of the cars were off the track, or that one of the brakes was set. A brakeman who had been riding in the cab of the engine got down, and in the discharge of his duty proceeded to walk back beside the train to ascertain what cause, if any, there was for stopping. While so engaged he fell through the bridge, and received injuries which caused his death. This court held that it was not the duty of the railway company to plank every bridge and cattle-guard to prevent accidents to its employes, although it might have anticipated that trains would be required to stop at other than the usual stopping places; and it was said that “ordinary care does not require that every possible contingency must be anticipated and guarded against, but only such as are likely to occur.” That such is the rule applicable to cases of this kind is well settled by the authorities. In Railroad Co. v. Locke, (Ind. Sup.) 14 N. E. Rep. 395, it is stated as follows: “The duty imposed does not require the use of every possible precaution to avoid injury to individuals, nor that the company should have employed any particular means which it may appear, after the accident, would have avoided it. It was only required to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to the accident.” In Loftus v. Ferry Co., 84 N. Y. 459, the material facts involved were as follows: A child six years of age fell from a bridge or float adjoining the passage-way for passengers going upon or leaving the ferry-boat, into the water, and was drowned, in consequence of an alleged defect in the guard at the side of the bridge or float. The guard, at the time of the accident, was in the condition it had been in for years. Many people had passed that place yearly, and no accident like that complained of had happened before. The court held that the ferry company was bound to provide suitable and safe accommodations for the landing of passengers, and that the rule of strictest diligence in that respect was the only one consistent with a due regard to the value of human life, and with the relations of the company...