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

• Decision Date: 29 October 1890
• Citation: 81 Iowa 504,47 N.W. 74
• Court: Iowa Supreme Court
• Parties: BROOKE v. CHICAGO, R. I. & P. RY. CO.

81 Iowa 504

47 N.W. 74

BROOKE

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

Supreme Court of Iowa.

Oct. 29, 1890.

Appeal from district court, Jasper county; D. RYAN, Judge.

Action for personal injury. Judgment for plaintiff, and the defendant appealed.T. S. Wright and Winslow & Varnum, for appellant.

Philipps & Day and Kerr & McElroy, for appellee.

GRANGER, J.

Plaintiff's intestate, O. H. Brooke, was a brakeman in the employ of the defendant. On the 7th of December, 1887, at Colfax, in this state, while in the discharge of his duties, he was injured by defendant's train, and soon after died, as a result of such injuries. The train on which Brooke was a brakeman, about dark, pulled into the station at Colfax. The train was cut, and the engine and five cars pulled to the west, for the purpose of placing four of the cars on a side track. The fireman was in charge of the engine, and Brooke and one Wilson were brakemen on the train, and were on the part that went forward. There were two switches on the main line, known in the record as the “east” and “west” switch. The course of the train that night was west, and, to set the cars out on the north side track, the east switch was to be used, and Brooke, being the front brakeman, was to, and did, open the switch, and the four cars were “kicked” in onto the side track. To do this, the detached part of the train moved west until the rear car had cleared the east switch which Brooke opened, and signaled the fireman (Robinson) to back, which was done, and Brooke advanced west to a point near the west switch, and while the train was moving backward, and onto the side track, he stepped between the first and second cars from the engine, and pulled the coupling-pin, which detached the four cars designed for the side track. The signals given by Brooke were with his lamp, and, after pulling the pin, the fireman observed his lamp go over his head, and, taking it for granted he had fallen, he stopped the train,--that is, the engine and one car,--and Brooke was found lying with his head to the north, and both limbs crushed, one at the ankle, and the other midway between the ankle and knee. The specific grounds of negligence of which the plaintiff complains on this trial are-- First, the construction and condition of the west switch where the injury occurred; and, second, the operation of the train in such manner that the engine and car or some part of it passed over Brooke after he fell, and his situation as to danger was or should have been known.

1. The switch in question is what is known as a “split switch,” and as to such switch, and the place of the injury, the jury made the following special findings in answer to the questions submitted: “Interrogatory 11. How far east of the west switch was the deceased when he was injured? Answer. About eight feet.” “Int. 15. Was it negligence on the part of the defendant to use a split switch near the place where the plaintiff's intestate was injured? A. No.” “Int. 24. Was the switch at and near the place where the accident occurred constructed as such switches are usually constructed? A. No. Int. 25. Was this switch out of repair? If so, in what respect? A. Yes; too much space between the split rail and the stationary rail.” We proceed then with the fact established that there was no negligence in the kind of switch used. The negligence then with which we have to do, if any, is in the construction of the switch, and the condition it was in at the time of the injury, and, at the outset, we should be careful to avoid any misapprehension as to the terms used; and it has seemed to us that, in argument, the word “construction” has not been understood in the sense intended by the finding of the jury. The theory upon which it is claimed that the injury resulted from the switch is that after the pin was pulled by Brooke, in his attempt to pass out from the train, his foot caught between what is called the “split rail,” and the stationary rail, and so held him that he fell, and his legs were crushed by the moving train. Now, our understanding of the finding of the jury is that a split switch, when properly adjusted or placed, is a reasonably safe one, but that the one in question was not so placed or adjusted. A description of the switch may aid us somewhat to know if the jury, under the evidence, could properly so find, for a position of appellant is that the record is a conclusive showing against negligence in the construction of the switch. One Howard North was an employe in the office of the defendant's road-master, and being familiar with such switches, and the one in question, gives a description; and we will use his description as given in his testimony. It may be well to first say that a split switch is made by the use of two split rails between the stationary rails that make the track, the split rails being chamfered off on the side of each, next to the stationary rail, these split rails being held in position by iron cross-bars fastened to the flange or base of the rails, so that, by one movement of the switch rod, both rails were moved, and the switch opened or shut as may be desired. One of the switch rails must at all times constitute a part of an open track; the other being a part of a track not open for use. The heel of the switch or switch rail is the end made stationary, and connected with the line of other rails which constitutes the track. The point of the switch or switch rail is the chamfered end, and movable by the switch rod. The point of the switch in question is to the west; and we now look to the description given by Mr. North: “About five feet from the west end of the switch rail, it commences to be lessened, and is diminished in size until it reaches a sharp or thin point at the west end, and is so pressed down or lessened as that, when it is thrown back against the stationary rail, it closes tight to it. The switch rail has a hollow cut in it, on the side next to the stationary rail, so that the ball of the main rail will fit into the hollow. When the switch is thrown back against the rail, it stands with a feather edge, and for a distance of about five feet, when it assumes the shape of the rail. The ball of the switch rail is cut down so that it does not bear any of the weight of the train at first, and then, as it gets along about five feet from the west end of the rail, it takes the whole weight of the train,--probably before that. It rises a little above the opposite rail, just enough to bear the weight of the train, and this carries it off onto the switch. When the switch is thrown off from the main track, the point of the switch will be a little less than six inches south of the stationary rail. * * * If the switch were thrown open so as to let the train pass upon the main track, the switch rail and the main rail would be about two inches and three-quarters apart at the nearest point in the middle, or near the middle, of that switch, at the nearest point of juxtaposition, assuming that they were five inches apart at the ends. It would extend as far back as they could put it in,--wherever there is any danger of the foot getting in; and just as far back as they could, without making it meet one another, so that the rails would come together when the switch is thrown up. There is no blocking at the other end,--the point of the switch rail. There could not be. The blocking would extend back six or eight feet, ranging according to the curve of the switch. If you had a curve that would bring your frog within thirty-two feet of the switch, then the block would have to go a good deal further back; the hinge of the switch would be further from the stationary rail.” The element of danger in these switches is the V shape, caused by the convergence of the split rail and stationary rail, and in such proximity that a person's foot may become wedged between them; and this is appellee's theory of how Brooke was injured. It is conceded that, at the point where the injury occurred in this case, the danger could not be avoided by blocking, as is done at other parts of the switch. The theory upon which the danger is said to be avoidable is by placing the split rail and the stationary rail so near together or so far apart as not to admit of the foot being caught. The jury in this case has found that the space between the rails was too much, and the testimony quite clearly shows that near where Brooke fell a man's boot could be caught between the rails. It clearly appears, by experiment, that, from about 5 to 6 feet east of the point of the switch, a person's foot would become fast, and that, 7 1/2 feet from the point, it could not be removed. It should be in mind that, when the accident occurred, the switch was set for the main track, and that the switch rail on the north side (where Brooke was) was not against the main rail, but away from it; and the testimony shows that the point of the switch rail was 5 or 6 inches from the main rail, and that the distance gradually decreased to a point 7 1/2 feet east, where the distance was about 3 3/4 inches. At that point the foot became fast but it was by putting the foot between the rails, where the...