Light v. The Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 18 December 1894
• Citation: 61 N.W. 380,93 Iowa 83
• Parties: CLAUS LIGHT v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

61 N.W. 380

93 Iowa 83

CLAUS LIGHT v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

December 18, 1894

Appeal from Dallas District Court.--HON. J. H. HENDERSON, Judge.

Action for damages resulting from a personal injury. Verdict and judgment for plaintiff. Defendant appeals.

Plaintiff says that the injury of which be complains was caused without his fault or negligence, and avers that it was produced as follows: "That on or about the 11th day of March, 1892 and while the plaintiff was in the employ of defendant engaged in the service of unloading cars of coal for said company on its line of railway, and while it was the duty of said plaintiff, under said employment and his orders from defendant, to go aboard a certain coal car in said yard, for the purpose of unloading the same at defendant's pump house, situated on its line about one-half mile west of said yards, to which car an engine was attached for the purpose of moving the same, with plaintiff and his colaborers, to said pump house, and while the plaintiff, in obedience to said orders from defendant, was, without fault on his part, in the act of getting on said coal car, the defendant and its employes in charge of, and running and operating, said coal car, and engine thereto attached, wrongfully, negligently and without warning or signal started said engine and car, and negligently and unskillfully started the said engine and car as aforesaid, with a sudden and a violent jerk, thereby jamming and crushing plaintiff's foot between the deadwood and drawbar of said coal car." Defendant denied generally, and pleaded that the injury was caused by plaintiff's own negligence. The case was tried to a jury and from a verdict and judgment for plaintiff defendant appeals.

Affirmed.

Cardell & Nichols and Wright & Baldwin for appellants.

Shortley & Harpel for appellee.

OPINION

Kinne, J.

I.

The facts established by the evidence are: That plaintiff was a section hand in the employ of the defendant company; that he was ordered by the section foreman to go, with other employes, and get upon a coal car which was to be switched about a half mile west, in the yards of the company, at Perry, Iowa to the pump house, to be unloaded. The car of coal was pushed down in the yards to a point some one hundred and fifty feet from plaintiff, and stopped for the men to get on. Part of the men had got on top of the coal car, and some of them were still on the footboard of the engine. While plaintiff was standing with his foot upon the deadwood, and in the act of getting upon the coal car, the engine was started, causing plaintiff's foot to slip down from the deadwood between the lip of the drawbar and the deadwood, where it was crushed. It is charged that the engine was negligently started without any warning or signal, also that defendant's employes negligently started the engine and car with a sudden jerk. As to the last allegation of negligence, it was not established by the testimony, nor, as we understand the instructions, was that question submitted to the jury. As to the starting of the engine and car without giving a signal or warning, the evidence is conflicting.

II. The court told the jury that the defendant was charged with "wrongfully and negligently, and without warning or signal, started said engine and car, negligently and unskillfully," and it is claimed that he thereby consolidated the two charges of negligence,-- that is, the starting without giving a signal and starting with a jerk. The fifth instruction is claimed to be open to the same criticism. It may be conceded that there was no evidence as to the engine being started with a sudden jerk which warranted the submission of that question to the jury. We think the contention of appellant is rather technical. As we view the matter, neither in the instruction nor statement of the issues was the question submitted to the jury as to the alleged negligence in starting the engine with a jerk. But there is good reason for holding that even if the statement and instruction are open to the complaint made, defendant is in no position to avail itself of that fact. Defendant asked an instruction as follows: "You are instructed that the questions upon which the defendant's liability depends are--First, was the injury to plaintiff, if any, occasioned through the negligence of the defendant in the moving and conducting of said engine and car?" It will be observed that this instruction, which the court refused to give, embraced all the acts of negligence pleaded, and the very matter now complained of; hence, having insisted by offering this instruction that it was correct, the defendant cannot now be heard to complain if the court erroneously adopted its view, even though it be true that thereby the court submitted a matter to the jury as to which there was no evidence. Smith v. Railroad Co., 38 Iowa 173; Weller v. Hawes, 49 Iowa 45; Campbell v. Ormsby, 65 Iowa 518, 22 N.W. 656.

III. The seventh instruction was as follows: "When the plaintiff, with others, was directed to go with the coal car to the pump house, it was the duty of those in charge of the switch engine to wait until the plaintiff had boarded the car, or placed himself in some other safe position, before starting the engine; and if the engine was started negligently, as alleged, before the plaintiff got aboard of the car, or in a safe place, and that by reason thereof, with no fault of his own, he was injured, then the defendant is liable for the injury caused thereby." It is said that this imposed upon the defendant the duty of waiting the pleasure of plaintiff in getting upon the car that under it he would be justified in delaying any length of time; and that no obligation rested upon the plaintiff. Taken as a naked proposition, the instruction, so viewed, would not be correct. But instructions must be considered in the light of the evidence to which they are supposed to be applicable. It was not the duty of defendant to wait for an indefinite length of time for plaintiff to mount the car; but it was its duty to wait at least a reasonable time for him to do so, having in view the circumstances, including his distance from the car. As applied to the facts as disclosed in evidence, the instruction could not have worked any prejudice to defendant. ...