Eighmy v. The Union Pacific Ry. Co.
| Decision Date | 28 January 1895 |
| Citation | 61 N.W. 1056,93 Iowa 538 |
| Parties | FRED EIGHMY v. THE UNION PACIFIC RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. A. B. THORNELL Judge.
Action at law to recover for personal injuries sustained by the plaintiff, and alleged to have been caused by the negligence of the defendant. There was a trial by jury, and a verdict for the plaintiff. Motions in arrest of judgment, for judgment in favor of the defendant on the first count of the petition, and for a new trial were filed by the defendant and overruled, and it appeals.
Reversed.
Wright & Baldwin for appellant.
Jordan & Brockett and N. M. Pusey for appellee.
At the time the injuries in question were received by the plaintiff he was in the employ of the defendant as brakeman on a freight train. On the eleventh day of April, 1888, the train with which he was employed was moved from the yards in Council Bluffs, over the bridge, to the yards in Omaha. As the train was made up, the locomotive engine was at the front or west end, the way car or caboose was next to it, and in the rear of that were thirty-four freight cars. The plaintiff was on the top of the rear car. Just after the engine passed over the bridge, the train was stopped, most of it being on the bridge. When the train was started, the two rear cars were detached and left behind by the breaking of a car link, but the train was stopped before it had moved half its length, another link and a pin were procured, the train backed, and the plaintiff, after giving the signal to back slowly, proceeded to make the coupling. While so engaged, his right hand was caught between the bumpers of the cars, and he received the injuries of which he complains. He charges the defendant with negligence which caused the injury, as follows: (1) In not providing the bridge with a floor or other safeguard against the unusual perils of coupling cars upon it; (2) in requiring freight trains to stop on the bridge before entering the switch at the east end of the Omaha yards; (3) in starting the train in question so violently as to separate it from the two rear cars; (4) in the sudden increase by the engineer, without warning, of the speed of the rear car of the train, as it approached the standing cars; (5) in the giving by the head brakeman of the signal to stop, without warning. In the second count of his petition, the plaintiff alleges that by reason of his employment by the defendant, his injuries, and the custom in such cases, it became the duty of the defendant to furnish him the services of a skillful and careful surgeon; that the defendant undertook to perform that duty, but that the surgeon employed for the purpose, after dressing the hand once, refused to treat it further, except to have it examined by an inexperienced and unskillful student; and that by reason of this negligence the hand became stiff, and almost wholly useless. The amount of damages the plaintiff is alleged to have sustained in each count is the sum of one thousand nine hundred and ninety-five dollars, and judgment for that amount is demanded. The defendant denies all liability on its part, and alleges that negligence of the plaintiff contributed to the injuries for which he seeks to recover. The jury found specially that, if the plaintiff had used a coupling stick or implement of like character for guiding the link, his hand would not have been caught; that he knew, when he went between the cars to make the coupling, that the cars would necessarily be moved a short distance before they would be stopped; that the engineer did not make any movement of the engine, to increase its speed or the speed of the train, after he received the signal to back slowly; that at or near the time the plaintiff stopped near the stationary car, to make the coupling, the engineer was signaled to stop, and did so. The jury returned a general verdict in favor of the plaintiff for the sum of one thousand five hundred dollars.
I. It appears that the defendant has what is called a "medical department" for the treatment of its employes who are injured on its road. Dr. Galbraith was employed by that department, on a salary, to attend to persons so injured. He was the one who amputated some of the fingers, and first dressed the injured hand of the plaintiff, and was assisted by Dr. Gibbs, the alleged student. There is no evidence that Dr. Galbraith was not in all respects competent and skillful, and it is shown affirmatively that Dr. Gibbs was a competent physician. He treated the hand after it was first operated upon and dressed. There was evidence from which the jury might have found that the treatment was improper and negligent, and that it was injurious to the plaintiff.
The next question to be determined is, to what extent is the defendant liable for the negligence of its physicians and surgeons? There is but little evidence in regard to its medical department. It seems to have included a...
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