50 N.W. 209 (Iowa 1891), McKee v. Chicago, Rock Island & Pacific Railway Co.

Citation:50 N.W. 209, 83 Iowa 616
Opinion Judge:ROBINSON, J.
Party Name:JAMES MCKEE, Administrator, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
Attorney:Freeland & Miles, Cummins & Wright and Thos. S. Wright, for appellant. Geo. Hall, for appellee.
Judge Panel:ROBINSON, J. BECK, C. J. (dissenting). BECK BECK, C. J. (dissenting).
Case Date:October 23, 1891
Court:Supreme Court of Iowa
 
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50 N.W. 209 (Iowa 1891)

83 Iowa 616

JAMES MCKEE, Administrator, Appellee,

v.

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 23, 1891

Appeal from Wayne District Court.--HON. J. W. HARVEY, Judge.

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

Reversed.

Freeland & Miles, Cummins & Wright and Thos. S. Wright, for appellant.

Geo. Hall, for appellee.

ROBINSON, J. BECK, C. J. (dissenting).

OPINION

[83 Iowa 617] ROBINSON, J.

In September, 1888, Joseph M. Brown was in the employ of the 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 twentieth day of the month named, he [83 Iowa 618] 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 the plaintiff that the defendant was negligent in allowing the fence to be placed so near the track as it was, and that the decedent was killed in consequence, and without fault on his part. The defendant denies the alleged negligence on its part, and the alleged absence of negligence on the part of the decedent, and alleges that he had been employed by the 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 the decedent long prior to his death.

I. 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 roadway, for the operation of its by its trains 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 [83 Iowa 619] the operation of its trains by its employes. * * *" The defendant complains of the portions of the charge quoted, on the ground that they require the 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 the defendant to use all ordinary and all reasonable care and supervision to keep its roadway 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 the defendant to make it so.

II. The only charge of wrong against the defendant

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is that it negligently placed the fence with which the 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 the defendant's railway, upon which the decedent had been employed, were constructed substantially alike. As we understand the record each cattle-guard was made by digging a pit across the roadbed 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 [83 Iowa 620] improperly constructed or located. Certain rules of the defendant, designed for the guidance of its track repairers, were, however, introduced in evidence over the objections of the defendant. One of the rules so introduced is as follows: "Second. 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 the 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 the defendant, to be placed further from the track than appurtenances of the road, which are permanently attached to the earth or roadbed.

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.

III. It is said, however, that the cattle-guard and fence could, with reasonable care, have been so constructed that the decedent would have passed the fence in safety. That may be conceded, and the question then arises [83 Iowa 621] whether the accident was of such a nature that the defendant should have guarded against it. The stones and ballast which had attracted the attention of the 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 brakebeam 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 the 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. Chicago, R. I. & P. Ry. Co., 65 Iowa 224, 21 N.W. 577. The facts involved in that case were...

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