Austin v. Chi., R. I. & P. Ry. Co.

• Decision Date: 17 January 1895
• Citation: 93 Iowa 236,61 N.W. 849
• Court: Iowa Supreme Court
• Parties: AUSTIN v. CHICAGO, R. I. & P. RY. CO.

93 Iowa 236

61 N.W. 849

AUSTIN

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Jan. 17, 1895.

Appeal from district court, Wapello county; E. L. Burton, Judge.

Action for personal injuries on defendant's road. There was a verdict and judgment for the defendant, and the plaintiff appealed. Affirmed.W. A. Work, Struble & Stiger, and J. F. Blake, for appellant.

T. S. Wright, Wm. McNett, and J. W. Lewis, for appellee.

GRANGER, J.

Plaintiff's intestate was a minor, some 19 years of age, in the employ of defendant company as a brakeman on freight trains. At Ottumwa, Iowa, January 4, 1890, while attempting to uncouple two freight cars, he fell, and was run over and killed. The negligence charged against the company is in the construction of its roadbed. The place where plaintiff's intestate was killed was at a switch, and the particular complaint is as to the construction of the switch in not filling in between the ties or under the switch bars, and that the switch bars were not placed between the ties at equal distances. A theory of the defense was that its manner of constructing the switch was the usual and customary manner of well-managed roads, and that the space under the switch was necessary for the purpose of having the bars move freely, and to prevent filling in by snow and ice, so as to affect the operations of the switch.

The district court admitted testimony in support of this theory of the defense, and also gave the instructions for the application of the facts it found. Of the evidence admitted and the instructions the plaintiff complains. The instruction directly assailed is the twentieth of the series given by the court. We think, to a fair understanding of the law on this particular branch of the case, as expressed by the court, the instruction preceding and the one following the one assailed should be given, and we quote the three, as follows: “(19) It was the duty of the defendant to exercise reasonable care to so construct its switch, at the point where the plaintiff's intestate is alleged to have been injured, as to avoid all unnecessary danger to its employés; and if you find from the evidence that it neglected to do so, and the deceased, E. J. Clark, was injured in consequence of such neglect, without negligence on his part contributing thereto, then the defendant is liable in this action. (20) The defendant claims that in the construction of said switch it was not negligent; that it constructed said switch and its surroundings in the ordinary and customary way; that the custom of building switches by the defendant and other well-managed railroads was to have a space under the switch bars of from two to four inches, for the purpose of having said bars move freely, and to prevent filling by snow and ice; and that in so constructing said switch it was acting in an ordinarily prudent and careful manner, and that it was not guilty of negligence. The court has permitted evidence of custom, and as to how other switches on defendant's road and other railroads in the city are constructed, as custom might tend to show whether or not the defendant had, in the construction of the switch in question, acted as a reasonably prudent man would have done; and if you find that the defendant was not negligent in the construction of said switch, then you should find for the defendant. (21) But, as you have been told, the custom or practice of railroad companies in building their switches, or in operating their roads, will not excuse from liability for injuries sustained, if such practice or custom is of itself negligent and disregards the safety of the employés. In such case it would be nothing more than negligence practiced habitually by such corporations.” The complaint is that the last instruction quoted “lays down a rule exactly contrary to that given in one preceding it.” The purport of the last instruction was, evidently, to guard the jury against a misapplication of a preceding one, by telling it that the custom of roads in the construction of switches could not affect plaintiff's right of recovery if it appeared that the manner of construction shown by the custom was “of itself negligent.” If not of itself negligent, then it could be considered in determining whether or not the defendant's agents, in observing such a custom, acted as reasonably careful and prudent men. An act of construction, in such matters, may be said to be, of itself, negligent, when, with the purposes of construction in mind, together with the hazards of its use, no better plan is apparent. If no better plan is apparent, the party is left to inquiry and determination as to what course of conduct will give him legal protection; or, in other words, what course of conduct will amount to diligence. The instructions give the rule that if in such inquiry and determination they adopt the custom of other...