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

• Citation: 69 Iowa 161,28 N.W. 487
• Court: Iowa Supreme Court
• Decision Date: 17 June 1886
• Parties: BROWN v. CHICAGO, R. I. & P. R. CO.

69 Iowa 161

28 N.W. 487

BROWN

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

Supreme Court of Iowa.

June 17, 1886.

Appeal from Washington district court.

The plaintiff is the administratrix of the estate of T. N. Brown, deceased, who was a fireman on one of the defendants's locomotive engines, and who was killed by coming in contact with a snow bank which was close to the railroad over which deceased was at the time, with others, operating a train. There was a verdict and judgment for the plaintiff. Defendant appeals.M. A. Low and Wright, Cummins & Wright, for appellant.

Ed. W. Stone, for appellee.

ROTHROCK, J.

This is the second appeal in this case. See 64 Iowa, 652, and 21 N. W. Rep. 193. The facts are very fully set forth in the former opinion; and, as they are substantially the same upon the present appeal, they need not be restated. It was held, on the first appeal, that the dangers from snow banks are inseparable from the operation of railroads where snow prevails, and is removed from the track by snow-plows, and that, when employes enter the service, they assume the risk of such damages. In so holding we followed the case of Dowell v. Burlington, C. R. & N. Ry. Co., 62 Iowa, 629;S. C. 17 N. W. Rep. 901.

The acts of alleged negligence which the court thought proper to be submitted to the jury upon the last trial were (1) the failure to place danger signals on the snow bank at the side of the defendant's railroad where it is alleged said Brown was killed; (2) in failing to give warning of the approach to said bank of snow by blowing the whistle or ringing the bells of the engine; and (3) in running the train on which deceased was employed at too high a rate of speed.

The defendant requested the court to instruct the jury that they should return a verdict for the defendant. We think this instruction should have been given, and we base our conclusions upon the fact that, conceding everything which the evidence tended to prove, defendant is not liable in damages by reason of negligence. The deceased was one of the crew or working force who, with the aid of a snow-plow, cleaned the track of snow from Washington to Knoxville. He knew of the existence of the banks of snow in close proximity to the track, and, with this knowledge, as we held on the former appeal, he assumed the risk of the danger attendant upon the condition of the road in this condition. He must be held to have the same knowledge of this danger as he had of the close proximity of cattle-chutes, coal-sheds, platforms, bridges, water-pipes, or other structures and appliances necessarily located in close proximity to the track, which may be passed in perfect safety, so long as employes keep themselves within line of the cars in the train, but which are dangerous when an employe exposes himself to contact with them by swinging outside of the line of the train. And there is no...