Bach v. Iowa Cent. Ry. Co.

• Decision Date: 18 October 1900
• Citation: 83 N.W. 959,112 Iowa 241
• Parties: BACH v. IOWA CENT. RY. CO.
• Court: Iowa Supreme Court

112 Iowa 241

83 N.W. 959

BACH

v.IOWA CENT. RY. CO.

Supreme Court of Iowa.

Oct. 18, 1900.

Appeal from district court, Marshall county; G. W. Burnham, Judge.

Action by plaintiff, who is a railway fireman, for injuries received through the derailment of a train. The answer was a general denial. Trial to a jury. Directed verdict for defendant, and plaintiff appeals. Reversed.Boardman & Boardman, for appellant.

Binford & Snelling, for appellee.

DEEMER, J.

As defendant's motion to direct a verdict was sustained, every fact favorable to plaintiff, and which the evidence tends to prove, must be conceded. With this in mind, we now proceed to a statement of the grounds of negligence, and of the evidence offered to sustain them. The charge is that plaintiff received his injuries through the derailment of a train, and that the negligence causing the accident consisted in the maintenance of a low cattle guard, the timbers of which were rotten and unsafe; that on or near the cattle guard there was a switch, and across the guard was a guard rail that was too high; and that the train on which plaintiff was riding was drawn by a heavy “mogul engine, and that, while running at the rate of thirty miles an hour, the engine struck this cattle guard in its defective and unsafe condition, causing it to sink, the pilot of the engine to strike the guard rail, the switch to spring, and the engine to leave the track.” In support of these allegations plaintiff introduced evidence tending to show that the accident occurred at a point on defendant's track where there was a “doubling” switch; that the cattle guard was at the point of the switch; that as soon as the engine struck the switch it dropped; and that sparks flew from the right side of the engine, either from the drivers or the pilot. Another witness testified that the engine dropped when it struck the cattle guard; that sparks flew from the front end, and that it almost instantly left the track. Immediately after the accident the guard rails were examined, and found to be badly scratched and bruised. As to the cause of the accident one of the witnesses testified as follows: “The cause of this accident was the cattle guard being low, and the timbers rotted under it, so it would give it a chance to sink when a heavy weight would strike it. When the trucks struck it, it sank, and the pilot struck the guard rail, and moved the switch, and the engine was thrown in onto the side track. * * * The timbers themselves, being the cattle guard, were rotten, and the front of the engine struck the rails over these timbers, and they sunk down; and there were joints in the rails which would let it sink every time, and when it thus sank down the pilot caught the guard rail, and let the engine in there. The track was not strong enough in there to hold up one of these large engines going at the speed it was going, and consequently the track gave way. I know the pilot struck the guard rail by the way the front of the engine dropped. Just before the...