Arenschield v. The Chicago, Rock Island & Pacific R. Co.

• Decision Date: 24 October 1905
• Citation: 105 N.W. 200,128 Iowa 677
• Parties: LILY S. ARENSCHIELD, as Administratrix of the Estate of W. S. ARENSCHIELD, Deceased, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

105 N.W. 200

128 Iowa 677

LILY S. ARENSCHIELD, as Administratrix of the Estate of W. S. ARENSCHIELD, Deceased, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

October 24, 1905

Appeal from Scott District Court.--HON. D. V. JACKSON, Judge.

ACTION to recover damages for the death of W. S. Arenschield occasioned by the alleged negligence of the defendant. Verdict and judgment for the plaintiff, and defendant appeals. The material facts are stated more fully in the opinion.

Affirmed.

Carroll Wright and Cook & Dodge, for appellant.

Lane & Waterman, for appellee.

OPINION

WEAVER, J.

For several years prior to the accident in question W. S Arenschield had been in the employ of the defendant as locomotive engineer upon its lines in and about the town of Eldon, Iowa. On January 1, 1903, said engineer was in charge of a locomotive hauling a work train or pile driver on one of the lines of defendant's road, and during the forenoon of that day brought his train into the Eldon yard in order to clear the track for another train. The yard contains several tracks and side tracks, extending substantially east and west, over which engines and trains are frequently moved. These tracks are crossed nearly at right angles by the main track of the Keokuk & Des Moines Railway, a part of the defendant's system. West of the Keokuk & Des Moines crossing, and in the midst of the tracks, is a coal chute, which receives its coal from cars hauled to the top of a trestle over a track constructed for that purpose. The trestle is about fourteen feet in height, and the track accomplishes the ascent at a maximum grade of 7 per cent., or at the rate of a rise of about 365 feet to a mile. The east end of this sloping track reaches the level of the yards within a short distance west of the Keokuk & Des Moines Railway crossing. Closely bordering upon the yards upon either side are restaurants, saloons, and other buildings. The passenger station or depot building stands at the junction on the north side of the yard we have attempted to describe, and on the east side of the Keokuk & Des Moines track. After bringing in his train, as already stated, Arenschield left his engine temporarily and went to a restaurant standing just south of the yard and west of the Keokuk & Des Moines track, where he procured a lunch, with which he started back in the direction of the depot building, which was also the general direction of the place where his own engine was standing. His course was along a path or way which had been in use by the public and by railway employes for many years. Standing cars, the number and location of which are variously stated by the witnesses, occupied some or all of the tracks south of the coal chute and west of the Keokuk & Des Moines crossing, thus obstructing his view of the chute and of the track ascending thereto. As he passed from behind these cars and stepped upon the coal-chute track at a point very near the foot of the steep grade to which reference has been made, an engine which was backing down from the top of the trestle ran over him, inflicting injuries from which he soon died.

It is the claim of the administrator of his estate that the injury and death of the deceased were occasioned by the negligence of the defendant and its employes, and without contributory fault on his part. The charge of negligence rests upon the following specifications: (1) That the engine which ran over the intestate was being operated at a reckless and unreasonable rate of speed; (2) that the engine was old and out of repair, and not equipped with proper or effective brakes; (3) that the way or view across the yard was unreasonably obstructed by standing cars; (4) that the engine was not of such kind or in such condition that it could properly or safely be operated upon the steep grade of the coal chute track; (5) that the employe of the defendant operating said engine at the time of the injury was not a skilled engineer, but a fireman who was not only incompetent for the position, but had been maimed by the loss of a part of his right hand, rendering him unfit and unable to properly manage and control the machinery placed in his charge; (6) that the engine was not a switch engine fitted for work in such a yard, but was an ordinary road engine, having a high tender, which obstructed the view of the track in that direction by the engine men and was provided with no lookout or guard; (7) that the engine was run backward at a high and reckless rate of speed down the grade of the coal-chute track over the intestate, without giving any warning of its movement by sounding the whistle or ringing the bell; and (8) that the engine was being thus operated without a lookout and without a watchman upon the crossing, in violation of the published rules of the defendant governing the management of the yard and the conduct of its employes. To this charge the defendant answers in denial, and alleges that the intestate was familiar with the yard of the company at Eldon, and knew that engines and trains were frequently operated upon and over its tracks at a high rate of speed, and sometimes without the customary signals and without a watchman stationed at the crossing, whereby it is alleged said intestate, by remaining in the defendant's service, assumed the risk of injury from such causes. It is further alleged that the danger to which the intestate was exposed by reason of the conditions alluded to "was a risk incident to the service which he contracted to perform," and defendant cannot be held liable for injuries thus occasioned to him.

I. It is the contention of the appellant that the verdict for damages to Arenschield's estate is not sustained by the evidence. In support of this proposition it is not...