Hamilton v. The Chicago, Rock Island & Pacific Railway Company
| Decision Date | 18 December 1894 |
| Citation | 61 N.W. 415,93 Iowa 46 |
| Parties | JOHN HAMILTON, Appellant, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY |
| Court | Iowa Supreme Court |
October 1, 1894.
Appeal from Appanoose District Court.--HON. W. I. BABB, Judge.
Action to recover damages for a personal injury. Verdict and judgment for defendant. Plaintiff appeals.--Affirmed.
The negligence charged against the defendant company is thus set forth in the petition: "That on or about the third day of March, A. D. 1892, the plaintiff was an employe of the defendant, and was engaged in the hazardous occupation of operating, with other employes, defendant's railway in said county of Appanoose; that on said date, while the plaintiff was using due care and caution on his part engaged, as aforesaid stated, in hazardous occupation of operating a railway, engaged as a section hand, plaintiff got on the hand-car, and while in the act of putting his mittens in the box on the hand-car, commonly called the 'supply box,' for the purpose of being more able to propel, and before he could withdraw his hand, his coemployees, Geo. W Steward, section boss, Frank Nicholson and Robert Coleman coemployees, or one of them, without using any care negligently started said hand-car and said section boss negligently permitted said car to be started, on which plaintiff was standing, and before plaintiff could withdraw his hand that the said coemployees, without using any care, negligently started said car as aforesaid; that the said coemployees, by the exercise of ordinary care, could have seen plaintiff, and could have seen his position if they did not see him; that said hand-car was started, as aforesaid, while the plaintiff was in the act of withdrawing his hand, and the rod passing up through said supply box on said car and the joint or knuckles on said rod, by reason of starting said car, caught plaintiff's hand and wrist, and forced the same against the woodwork of the car, or side or end of the supply box, and crushed and mangled the hand and wrist of plaintiff, and injured the same so that the plaintiff will never have the use of said hand; and by reason of said injury, plaintiff has been permanently injured." Plaintiff alleges that he was not negligent. In an amendment he charges the defendant with negligence in starting or permitting the car to be started; that the car was defectively constructed, of which fact the plaintiff had no knowledge. The defendant denies all of the allegations of the petition and amendment, and avers that plaintiff contributed to the injury. After plaintiff rested, the defendant moved for a verdict, which motion was sustained, and a verdict returned accordingly, from which ruling the appeal is prosecuted.
Affirmed.
Geo. D. Porter for appellant.
Cummins & Wright and Vermillion & Vermillion for appellee.
Counsel argue at length the question as to whether the plaintiff in this case is within the protection of Code, Section 1307. In our judgment, a determination of that question is not important, as the injury for which recovery is sought was wholly accidental. The evidence fails to show any negligence on part of the defendant. It is therefore not material to inquire as to the plaintiff's negligence. The charges of negligence, in brief, are: In starting or ordering the car started; in using a car defectively constructed. Without attempting to set out the evidence, we may state...
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