Allen v. Burlington, Cedar Rapids & N. Ry. Co.

• Decision Date: 21 March 1882
• Citation: 11 N.W. 614,57 Iowa 623
• Court: Iowa Supreme Court
• Parties: ALLEN v. BURLINGTON, CEDAR RAPIDS & NORTHERN RY. CO.

57 Iowa 623

11 N.W. 614

ALLEN

v.BURLINGTON, CEDAR RAPIDS & NORTHERN RY. CO.

Supreme Court of Iowa.

Filed March 21, 1882.

Appeal from Des Moines district court,

Action to recover damages sustained from personal injuries received by plaintiff while employed as a brakeman upon defendant's railroad, which were caused by negligence of defendant. There was a verdict and judgment for plaintiff. Defendant appeals.J. & S. K. Tracy, for appellant.

Newman & Blake and Dodge & Dodge, for appellee.

BECK, J.

1. The plaintiff, in the discharge of his duty as a brakeman, was required in the night-time to couple to his train certain cars upon a side track, to be taken or removed by his train. A “cattle chute” was situated near this side track, which was passed by the cars under the charge of plaintiff, upon one of which, a coal car, he was at the time, having previously made the coupling. While getting down from the car in order to change a switch, the train being in motion, he was struck by the “cattle chute” and thrown to the ground. A wheel of one of the cars ran over his foot, crushing it so that amputation became necessary. The “cattle chute” was shown to be from 19 to 23 inches from the passing car. The issues in the case involve the negligence of the defendant in constructing the “cattle chute” too near the side track, and the want of care of the plaintiff in getting down from the car in such manner that he was struck by the “cattle chute.” Upon these issues the following testimony on the part of plaintiff was introduced, against defendant's objection:

M. Portland, a witness for plaintiff, testified, in response to the following questions: (1) “Tell the jury the usual way that brakeman get on and off these coal cars in proper railroading, in the line of their duty?” Answer. “There is but one safe way to get on the car; that is, to get up by placing the foot on the truck or journal box, and get off the same way. * * *” (2) “Now, from your experience as a brakeman, will you please tell the jury, if his chute stood 15 or 19 inches from the outside edge of the car, whether that was a reasonably safe distance for a brakeman to operate and endeavor to get ready to get off a car in the night-time in the dark?” Answer. “It is not a safe distance from the track, because it will not permit a man passing between the car and chute.”

Turner, a witness for plaintiff, was permitted, against defendant's objection, to testify as follows: (1) “Tell the jury how a brakeman, in the line of his duty, would prepare to get off a coal car to turn a switch in the night-time.” Answer. “Get over the side of the cars and stand on the box-stand on the journal.” (2) “Is it within the line of duty of a brakeman who is switching in this way to wait until the train has run down past the switch, and then get off and turn the switch?” Answer. “No, sir; it is not his duty to do that--to wait until the train stops.” (3) “I will ask you whether it is in the line of duty of a brakeman to get off of a coal car at a switch for the purpose of turning it while it is in motion.” Answer. “Yes, sir; it is the duty of a brakeman to work as quick as he can; and to do this he must get on and off the train while it is in motion.” (4) “Is there any danger to a brakeman, in the line of his duty, in getting off the side of a coal car or getting ready to get off the side of a coal car in the night-time to turn a switch, on account of a solid body being 15 or 19 inches distant from the outer edge of the car?” Answer. “There is. It is impossible, I should think, for a man's body to pass through a space of that kind, and, for that reason, there would be danger--all possible danger.”

Parker, another witness for plaintiff, was permitted to testify as follows: (1) Question. “In going up to the cars, state whether it is within the line of duty of a brakeman to get off the car when it is in motion?” Answer. “Yes, sir. He should get off the car; be ready to get off at the switch. In preparing to get off it would be his duty to get over the side of the car.” (2) “Where should he place himself?” Answer. “In a car of this kind he would have to stand on the journal box, get over the side, and put his foot on the box and his hands on the side; this would be within the line of his duty.” (3) “How soon should a brakeman prepare to get off his train--jump off a moving train and turn a switch--to be within the line of his duty?” Answer. “In time to get off at the switch, he would be in the line of his duty if he prepared to go off at once, when the train is operated with steam brakes, and when he only goes 95 steps.”

Other evidence to the same effect was admitted, against defendant's objection.

2. This testimony, in our judgment, is an expression of the opinion of the witness, which will plainly appear upon brief consideration. The witness declared that certain acts were within the “line of the duty” of the brakeman. While it was competent for the witnesses to state, as a fact, what services were performed by the brakeman in the discharge of his duty, they ought not to have been permitted to express an opinion that a particular manner of performing such services was required of him in the discharge of his duty. The duty of a brakeman may be prescribed by rules of the company employing him, or by custom prevailing in the operation of railroads. It pertains to the particular services performed and the purposes to be accomplished. It may require him to couple and uncouple cars, to change switches, to check the speed of the train, etc. It requires him to do these things in a reasonable, careful, and prudent manner, with a view to his own safety, as well as the safety of the train. He is required to use the appliances intended for the different work done by him. The discharge of his duties may be performed in different ways. The manner of his performance of duty must be distinguished from the duty itself. Now, a brakeman, in the discharge of his duty, is...