Keatley v. Ill. Cent. R. Co.

• Citation: 63 N.W. 560,94 Iowa 685
• Parties: KEATLEY v. ILLINOIS CENT. R. CO.
• Decision Date: 22 May 1895
• Court: United States State Supreme Court of Iowa

94 Iowa 685

63 N.W. 560

KEATLEY

v.ILLINOIS CENT. R. CO.

Supreme Court of Iowa.

May 22, 1895.

Appeal from district court, Dubuque county; J. J. Ney, Judge.

The plaintiff is administrator of the estate of Robert Keatley, deceased. This action was brought to recover damages of the defendant for causing the death of the deceased, which occurred by reason of a railroad car on the defendant's road leaving the track, and tipping over, and falling on him. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals. Reversed.W. J. Knight and Hubert O'Donnell, for appellant.

J. H. Shields, for appellee.

ROTHROCK, J.

1. The deceased was killed on the 24th day of October, 1890, at a bridge on the line of defendant's road near the city of Dubuque. It appears from the record that at that time the defendant was engaged in replacing a wooden bridge across a creek with an iron structure. The new bridge was about 70 feet long, was a single span, and each end rested on stone abutments. At the time of the accident there were two gangs of men at work on and near the bridge. Each body of men was under a separate foreman. One was known as the “stone gang.” The abutments of the bridge were fully completed, and the stone gang were not at work on the bridge proper. They were engaged in building a retaining wall from the end of one of the abutments, to protect the embankment and trestle east of the bridge. The other employés, known as the “iron gang,” were employed in completing the superstructure of the bridge, and had so far progressed with the work that it was expected it would be finished the next day. The bridge was on the main line of defendant's railroad from Dubuque to Sioux City, and during the time that the change was being made in the bridge the traffic over the road continued, the trains passing over the new structure before it was completed. The stone gang used a derrick to raise the stone for the construction of the retaining wall. This derrick was located between the retaining wall and the railroad track, and there is no claim that it was not properly placed to do the work at which they were employed. The deceased was a boy, about 15 years old, and was employed as one of the stone gang. His service consisted of carrying and serving the men with drinking water, and in such other work as he was directed to do by the foreman. At the time of the accident he was on the platform where the derrick was located, at the east end of the bridge. A freight train approached from the west. There were 20 loaded cars in the train. The engine and 10 cars passed safely over the bridge. The next two cars went off the track, but passed along over the ties beyond the east abutment, and fell over on the derrick platform, and killed the deceased. The superstructure or ironwork of the bridge was pushed east off the west abutment, and dropped into the stream below. Some of the cars went down with the bridge, and the rear end of the train remained standing on the west approach. These are the undisputed facts attending the death of the deceased. The right to recover damages is based on the alleged negligence of defendant's employés, and the negligence charged is set forth in the petition in these words: “That at the time the bridge was but partially completed; that the ends of the same were resting on abutments about seventy feet apart; that the bridge was not supported or held in place by guys, rods, or other supports; that the rails of the track crossing the same were not securely spiked to the ties, but were negligently and carelessly allowed to lie in a loose, unspiked, and insecure condition for the passage of trains thereon; that said bridge, in its unfinished and insecure condition, with the loose and unfastened rails thereon, was negligently and carelessly allowed to lie and remain in such dangerous and insecure condition; that while decedent was employed on and about the same, where his duty called him to be, and while said bridge and the ties and rails thereon were in said insecure and dangerous condition, a heavy freight train was negligently and at a high and dangerous rate of speed run by appellant from the west, down a steep grade, around a curve, and onto said bridge; that the track, rails, and ties thereon were thereby spread and thrown apart, said train was derailed, and thrown with great force against and upon said bridge, and the same was thrown down; that decedent, while so employed on said bridge at the time of the destruction thereof, was thereby thrown under said bridge and train, from the effects of which he died, to the damage to his estate in the sum of ten thousand dollars; that said accident, injury, and death of decedent were caused by the grossly negligent, careless, and improper condition of said bridge, and the ties and rails thereof, so allowed to be by appellant, and the negligent and dangerous act of so running said train at a dangerous rate of speed over the same, and without fault or negligence on the part of decedent.” There was a sharp conflict in the evidence as to the condition of the bridge at the time of the accident. Much of this evidence related to the spaces between the ties under the rails; the plaintiff's witnesses giving testimony tending to show that they were wide apart, and the testimony of the defendant's witnesses was to the effect that they were placed at proper distances. One of the plaintiff's witnesses was permitted to state, over the defendant's objection, what the position of the ties was the day before the accident. The objection to this evidence should have been sustained. The ruling of the court was erroneous. The inquiry should have been directed to the condition of the bridge at the time of the accident. There is no claim made by any witness that the condition was the same 24 hours before the accident that it was when the accident happened. The evidence is undisputed that the iron gang moved the ties back and forth during the day, to enable the men to get down under the track to rivet the ironwork. While we hold that this evidence should not have been admitted, yet we doubt, if this were the only error in the record, whether the judgment should...