Baird v. C., R. I. & P. R. Co.

• Decision Date: 10 December 1880
• Citation: 55 Iowa 121,7 N.W. 460
• Court: Iowa Supreme Court
• Parties: BAIRD v. C., R. I. & P. R. CO.

55 Iowa 121

7 N.W. 460

BAIRD

v.C., R. I. & P. R. CO.

Supreme Court of Iowa.

Filed December 10, 1880.

Appeal from Madison circuit court.

The plaintiff brings this action to recover for injuries sustained whilst employed as a brakeman on a freight train on defendant's road. The petition states the cause of action as follows: “That he was engaged in the act of coupling two freight cars, such coupling being in the line of his duty, one of which, through the neglect of defendant's employe, and without the knowledge of plaintiff, was defective, having no proper and suitable brake, whereby it could be set stationary on the track, and which said car, at the time of plaintiff's attempt to couple it to another car, and because of the want of said brake, was moving on the track, the track being inclined, endangering plaintiff's person and life, and plaintiff, seeing this danger, immediately thereupon attempted to make his escape, and would have succeeded in doing so, but through the neglect and carelessness of the employes of defendant a ditch had been dug across the road-bed and main and side tracks of defendant's road at said station, and left uncovered, unknown to this plaintiff, (it being in the night-time,) and plaintiff being unable to see said ditch, into which plaintiff stumbled, and was in danger of falling, and in attempting to save himself from falling and being crushed by the cars, caught upon the draw bar of said car, and his fingers, by the coming together of the cars, were caught and severed from his hand; that said ditch was constructed needlessly and carelessly, and negligently and wrongfully permitted to remain in an improper and dangerous condition. The plaintiff was injured through the improper construction and condition of said car, and of the dangerous and improper condition of said ditch, and without fault or negligence on his part.”

The answer is a general denial. The cause was tried to a jury. A general verdict was returned for plaintiff for $3,500. The jury also returned the following special verdict:

“ First. Do you find that plaintiff knew that a car not braked, or set upon the track without a brake, was liable to move its position? Yes. Second. Do you find that plaintiff, after he knew that the detached car was approaching him from the west, remained inside the rails, and at the west end of the train, until the cars had approached close together before attempting to step out? Yes. Third. Do you find that the fact of the brake chain lacking caused, or assisted in causing, the detached car to fail to remain stationary on the track? Yes. Fourth. Do you find that plaintiff, before the accident occurred, knew that this car had no brake-chain on it? Yes. Fifth. Do you find that the fact that the detached car was approaching from the west made the coupling that plaintiff was attempting any more dangerous than it would have been if the car had been standing still? Yes. Sixth. Do you find the fact that the detached car was approaching from the west made it any more dangerous for him to remain between the train and said car than it would have been if said car had been standing still? Yes. Seventh. Do you find that plaintiff remained between the cars after he discovered that the detached car was approaching from the west? Yes. Eighth. Do you find that plaintiff, after he saw that the detached car was approaching from the west, walked westward along the track for any distance before he was injured? Yes. Ninth. Were the cars about coming together when the plaintiff attempted to step out? Yes. Tenth. Do you find that for plaintiff to be between cars, each of which was approaching the other, was unusually dangerous? Yes. Eleventh. Did plaintiff know or understand that there was more danger than usually accompanied his ordinary duties to be between cars, each of which was approaching the other? Yes. Twelfth. Do you find that the plaintiff undertook to step out from between the cars for the reason that he regarded it more than usually dangerous to remain between them, because the cars were each approaching the other? Yes.”

The defendant moved the court to render judgment against the plaintiff upon the special findings notwithstanding the general verdict. Subject to this motion the defendant moved the court to set aside the general verdict. Both motions were overruled, and judgment was entered upon the verdict. The defendant appeals.Wright, Gatch & Wright, for appellant.

P. M. Sutton, for appellee.

DAY, J.

1. Upon request of the defendant the court gave the jury the following instruction: “If you believe from the evidence that the car spoken of in the petition and...