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

• Decision Date: 20 October 1882
• Citation: 13 N.W. 731,61 Iowa 359
• Parties: BAIRD v. CHICAGO, R. I. & P. R. CO.
• Court: Iowa Supreme Court

61 Iowa 359

13 N.W. 731

BAIRD

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

Supreme Court of Iowa.

Filed October 20, 1882.

Appeal from Madison circuit court.

Action for a personal injury. The case is now before us upon a second appeal. There has been one trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appealed to this court and the judgment was reversed. 55 Iowa, 121; [S. C. 7 N. W. REP. 460.] It appeared that a special verdict was rendered, and that the special verdict was such that the jury should, under an instruction given, have found a general verdict for the defendant. The case was remanded, with leave to the defendant to insist upon his motion for a new trial, or for judgment notwithstanding the general verdict, as it might be advised. The defendant moved for judgment notwithstanding the general verdict, and the court sustained the motion. The plaintiff now appeals.Sutton & Childs and A. W. Wilkinson, for appellant.

Wright, Cummins & Wright, for appellee.

ADAMS, J.

The defendant insists that the special verdict shows that the plaintiff was necessarily guilty of contributory negligence, and that even if it does not we must treat it as if it did so show, on account of a certain instruction given by the court. We have, then, first to inquire as to what the special verdict shows. It is set out in full in 55 Iowa, 121; [S. C. 7 N. W. REP. 460.] It was in substance as follows: The plaintiff, as brakeman, was about to couple a moving train to a moving car. The train was moving westward and the car eastward, the car having a defective brake, which was the cause of its not remaining stationary. The plaintiff discovered that the car was approaching from the west, and although it was more than usually dangerous to undertake to couple cars which were approaching each other in that way, and although he knew that to be the fact, he did not attempt to step out at first from between the rails, where he had placed himself, but walked westward between the rails and attempted to step out only when the cars were about to come together. We should state in this connection that the undisputed evidence shows that the accident occurred in the night; that the plaintiff, in attempting to step out, stepped into a ditch and stumbled; that as he did so he threw one hand upon the draw-bar, and while his hand was in that place the cars came together and crushed his fingers, and the injury thus received is the injury complained of.

The defendant's position is that the plaintiff was necessarily guilty of contributory negligence because he did not step out immediately upon discovering that the car to which he desired to couple was coming towards him. But it does not appear from the verdict at what speed the cars were approaching each other. It is abundantly evident that there is a rate of speed at which the cars might have approached each other and been coupled with entire safety. It is true that the jury in this case found that there was more than usual danger by reason of the fact that the car to which plaintiff was to couple was not stationary. But their finding must mean, we think, that it was more dangerous than it would have been if the car to which he was to couple had been in the usual condition of a car to which a coupling is made, and that is stationary. The mere fact alone that the car was in motion, regardless of the speed with which it was moving, would not necessarily make the coupling more dangerous than an ordinary one. But if it should be conceded that the jury meant that the coupling in this case, in view of all the circumstances shown, was more dangerous than an ordinary one, it would not necessarily follow that the plaintiff was guilty of contributory negligence. Nearly all employment in making up and running railroad trains is more or less hazardous. Some duties appear to involve a very large hazard, and others a very small one. In performing a duty which necessarily involves a large hazard, the employe should, of course, exercise greater care; but we cannot say that the employe might not under some circumstances be justified in taking more than the ordinary risk. The rule contended for would not be found to be a practical one. Risks differ according to circumstances, and the circumstances are sometimes very complicated, and not always to be apprehended and estimated in a moment by the employe while intent upon the performance of his duty. The ordinary rule is that the employe should exercise such care as a prudent person might reasonably be expected to exercise in view of all the circumstances of the particular case, so far as they are known to him or are discoverable in the exercise of proper diligence. Now, while this rule gives considerable latitude to the jury, it is not easy, we think, without error, to depart from it much, ordinarily, for the purpose of giving one which is narrower and more specifically applicable to the given case.

Let us see what the difficulty in the case at bar is. The train was backing westward to be coupled to a moving car, which, by reason of a defective brake and an inclination in the track or force of the wind, had not remained stationary as it should have done, but was moving eastward. The plaintiff was walking westward between the rails just in advance of the train backing westward, and close by the draw-bar, intending to raise the link so as to effect a coupling when the cars should come together. But seeing that the car to which he was to couple was moving towards him, he concluded not to remain until the cars came together, and attempted to step out. He might, and as the circumstances were he should, have come to this conclusion sooner, and put it immediately into execution. Had he done so he would manifestly have succeeded. But just ahead of him was a ditch, which was liable to cause him to stumble, and which did cause him to stumble. Had he seen it, or had he known that there was a ditch there, there would be much ground for contending he was guilty of contributory negligence. But it does not appear that he...