Perigo v. Chicago, R. I. & P. R. Co.
| Decision Date | 16 December 1880 |
| Citation | 7 N.W. 627,55 Iowa 326 |
| Parties | PERIGO v. THE C. R. I. & P. R. CO |
| Court | Iowa Supreme Court |
Appeal from Polk Circuit Court
ACTION to recover for personal injuries sustained by the plaintiff's intestate while employed by the defendant as a brakeman. No witness testifies as to how the accident occurred, but the evidence shows sufficiently that the deceased must have fallen from the cars while in motion. The accident occurred near where a coal platform had been erected very near to the track. The plaintiff's theory is that the deceased was knocked from the cars by the platform, and she avers that the defendant was guilty of negligence in erecting the platform so near the track. The defendant denies all negligence upon its part, and avers that the deceased was guilty of contributory negligence. There was a trial by jury and verdict and judgment were rendered for the plaintiff. The defendant appeals.
REVERSED.
Wright Gatch & Wright, for appellant.
Bryan & Bryan, for appellee.
I. The deceased when last seen prior to the accident had just uncoupled a car from the rest of the train, and stepped aboard, and was entering a passenger car. The train moved off, and he was next seen under the coal platform, and after the accident had occurred. Between the platform and the passenger car, as it passed, was a space of only about seven inches. If the decedent while riding upon the steps of the passenger car had allowed his body before reaching the coal platform to swing out more than seven inches beyond the car and to remain in that position until the platform was reached, he must have been struck by it. The evidence, however, shows that the steps of the car were covered with sleet, and were slippery. It is possible, therefore, that he was not knocked off by the platform, but fell by slipping. Whether he was knocked off by the platform or not was a material question for the jury to determine. The appellant contends that the question was not properly submitted, but that the court assumed that the accident occurred by reason of the platform, and proceeded to instruct the jury upon this theory. In the first instruction, given at the request of the plaintiff, the court said: "If you find from the evidence that the coal platform by which the deceased was injured was built so near the track of the defendant's road as to unnecessarily endanger the defendant's employes on duty at that place, then you are charged as a matter of law that the defendant was guilty of negligence, and you should find for the plaintiff unless you find that the deceased was guilty of negligence directly contributory to his injury." It is abundantly evident that if the words "by which the deceased was injured" had been omitted from the instruction, it would have been erroneous. It would have made the defendant's liability depend upon the mere fact that the platform was erected within dangerous proximity to the track, and without regard to whether the deceased was struck by it or not. If the instruction can be sustained, it must be because the words "by which the deceased was injured" submitted the question whether the deceased was injured by the platform or not. Now, if by any stretch of construction those words could be considered as submitting the question, it appears to us that it is not a fair and proper way of submitting it. It carries upon its face the assumption that there is no such question. Possibly the objection might be deemed to have been obviated if the question had been distinctly and fairly submitted elsewhere. But we look in vain for any other instruction upon this point.
In defense of the instruction our attention is called by the appellee to Greenleaf v. The Illinois Cent. R. Co., 29 Iowa 14 (42). In that case the words "the car which produced the accident" were held to be unobjectionable, and upon the ground that they merely designated the car which the plaintiff claimed was defective in its construction. That case differs from the case at bar. In the case at bar the court had no occasion to distinguish the platform in question from other platforms. Beside, in the case cited it is stated as a fact that the decedent was thrown or compelled to jump from a certain car; about this there appears to have been no controversy. The question was as to whether the car was defective, and this question appears to have been fairly submitted.
The instruction under consideration is further objected to by appellant because it excludes from the consideration of the jury the question as to whether the decedent did not waive the negligence of the appellant, if there was any. There is some doubt in our minds whether under the answer there is any question of waiver in the case. The appellee, as we understand, contends that there is not, because the answer is silent upon it. The question as to the sufficiency of the answer in this respect is not argued by counsel upon either side, and we shall not pass upon it. The case must be remanded, and the answer can be amended if the counsel for the defendant shall deem it necessary.
II. The appellant asked an instruction in these words: "If the jury believe from the evidence that the deceased while in the employment of the defendant was about and performed duties in the vicinity of said coal platform daily or almost daily for a year or more, that the proximity of said platform to the cars as they passed was plain and apparent, and that he knew, or by the exercise of ordinary care to avoid injury to himself might have known, of such proximity, and that...
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