Ferguson v. Chicago, Milwaukee & St. Paul Railway Co.

Decision Date27 January 1897
Citation69 N.W. 1026,100 Iowa 733
PartiesGEORGE W. FERGUSON v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
CourtIowa Supreme Court

Appeal from Woodbury District Court.--HON. GEORGE W. WAKEFIELD Judge.

ACTION at law to recover damages for personal injuries sustained by plaintiff in being run over by a switch engine in defendant's yards, in the city of Sioux City. Trial to a jury. Verdict and judgment for the plaintiff, and the defendant appeals.

Reversed.

H. H Field and Taylor, Shull & Farnsworth for appellant.

Argo McDuffie & Argo for appellee.

OPINION

DEEMER, J.

At the time the plaintiff received his injuries, which was on December 21, 1892, he was in the employ of the defendant as a switchman, in its yards at Sioux City, Iowa. He was thirty-two years of age, and had been engaged in railroading, in the capacity of brakeman, conductor, and switchman, for eight or nine years. He had been employed in switching for about two years prior to the accident, and for the defendant, about nineteen months prior thereto. The defendant's yards extend in an easterly and westerly direction through the entire city of Sioux City, and were known as the upper and lower yards. At the time plaintiff received his injury, he was working on the upper yards, which are in the vicinity of the passenger depot of the railway company. At the time of the accident the company was using an ordinary road engine for switching purposes. It had, however, taken the pilot off, and had placed handrails and footboards at the forward and rear ends of the engine. A few minutes before 10 o'clock A. M. of the day in question, the switch-engine crew received orders to go west on defendant's main line of road, which runs into Sioux City from South Dakota, to help a freight train into the city. A passenger train was due from the west, however, at about 10 o'clock, aud the switch engine and its crew were compelled to await its arrival before proceeding onto the main track. During the interval, the switch engine stood on what is known as the "Joint Track," north and opposite of the passenger depot, and east of what is called "Douglass Street." The engineer and fireman were on the switch engine, and plaintiff and a fellow switchman, named Rossiter, were loitering around the express office, at the foot of Douglass street, all awaiting the arrival of the passenger train. The passenger train came in on the main line track, which is immediately south of the joint track, and stopped just east of the Douglass street crossing. Thereupon the switch engine started to go westerly on the joint track, through the switches, and out on the main line. As the engine started, the bell was sounded, and it continued to ring until after the accident occurred. Plaintiff, whose duty it was to turn the switches so that the engine might pass onto the main track, started from the express office in a northwesterly direction, and ran towards the side-track on which the switch engine was moving. He stepped over between the rails of the track on which the switch engine was running, some thirty or forty feet from where it started, and attempted to jump onto the front foot-board. In this he did not succeed, but slipped and fell on the track, and the foot-board of the engine passed over him. As it passed over him, plaintiff caught the foot-board, and was dragged for more than one hundred feet, when his right foot was caught by one of the wheels, and so injured that amputation was necessary. At the time plaintiff received his injuries, the engine was running at a speed of from four to six miles an hour. Plaintiff claims that as soon as he fell he commenced to call out in a loud voice, but that the engine was not stopped until after he received his injuries. Three charges of negligence are made in the petition: First. In permitting the foot-board of the engine to become covered with ice and snow. Second. Failure on the part of the persons operating the switch engine to keep a proper watch and lookout for plaintiff, and in not listening for his signals, or stopping the engine after he had signaled to have the same stopped. Third. "Using an engine not properly constructed, and not intended for switching, for the reason that the boiler shut off the view of the engineer of persons on the foot-board of said engine; that the front of the boiler projected over the foot-board; that the wheels of the engine were placed close behind the foot-board, and the engine was not provided with a sufficient railing to enable plaintiff to get upon the foot-board, or to ride thereon, with safety. It was also alleged that after the plaintiff had fallen from the foot-board, he was carelessly and negligently pushed along the track in front of the engine; that during all the time he was so being pushed, he cried out, and did everything in his power to attract the attention of the persons in charge of the engine, but they failed and refused to stop said engine, by reason whereof he was run over and injured." The trial court, in its instructions to the jury, eliminated all charges of negligence with reference to the construction and condition of the engine and foot-board, and submitted the case solely upon the issue of negligence of persons in charge of the engine, in failing to keep a proper lookout, or in failing to hear the plaintiff's outcries, or to stop the engine after he had fallen upon the track. At the close of the evidence, defendant moved for a verdict in its favor, for the reasons:--First, that no negligence on the part of the defendant or its employes had been shown; and, second, that there was such contributory negligence on the part of the plaintiff as would defeat a recovery. This motion was overruled, and defendant then asked instructions to the effect that under the facts disclosed by the evidence, there was no negligence, and plaintiff could not recover. These instructions were refused, and exceptions taken.

This appeal presents but two questions, and these relate to the sufficiency of the evidence. Appellant insists that the evidence is insufficient to show negligence of the persons in charge of the engine, either in failing to keep a proper lookout, or in not hearing plaintiff's outcries, or in not stopping the engine after he had fallen upon the track. And it further insists...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT