Bryce v. Chi., M. & St. P. Ry. Co.

• Decision Date: 30 October 1897
• Parties: BRYCE v. CHICAGO, M. & ST. P. RY. CO.
• Court: Iowa Supreme Court

103 Iowa 665

72 N.W. 780

BRYCE

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Oct. 30, 1897.

Appeal from district county, Cedar county; William P. Wolf, Judge.

Action for damages brought by plaintiff, as trustee for Milo H. Lounsbury, for injuries received while in the employment of defendant. Trial to jury. Verdict and judgment for the plaintiff, and defendant appeals. Affirmed.Burton Hanson, Chas. B. Keeler, and T. B. Hanley, for appellant.

Preston, Wheeler & Moffit, F. L. Anderson, and Wright & Wright, for appellee.

LADD, J.

The bridge was a Hawe truss, constructed nine years ago over a stream and highway about 1,500 feet east of defendant's station at Anamosa, on its line of road running from Marion to Farley, and was 14 feet wide, and a few inches more than 34 feet in length. The track over the bridge was curved so that the north rail was 5 or 7 inches nearer the truss at the northeast corner than the south rail to the end opposite, and a few inches lower,--the track curving to the north,--causing the cars to “shuck” over and lean to the north in passing over the bridge. The trusses on either side were about one-half the height of a box car, with timbers held together by long iron bolts, with nuts on the inside. These bolts extended through the timbers about 2 inches beyond the nuts at the northeast corner of the bridge, and came within 15 inches of a common stock car standing on the track. This distance would vary with the width of the car, the way it was loaded, and the speed of the train. The bridge was in a valley, with up grades in both directions; that to the east beginning a quarter of a mile east of the bridge, and up a considerable hill, while that to the west commenced at the bridge, and was not heavy. From each extremity of the bridge the track curved to the north. In approaching the bridge from the east, it was usual to set the brakes at the summit of the elevation or hill, and loosen them at the foot of the grade towards the bridge. The train on which Lounsbury was employed at the time of the accident consisted of 15 or 18 freight cars and a combined baggage and passenger car, without air brakes, and approaching Anamosa from the east. The hand brakes had been set at the top of the grade, as usual; and, as the train reached the bottom, Lounsbury, who was on the cars, near the center, began releasing the brakes as he moved forward. There were two refrigerator cars immediately behind the tender; then a flat car, used for coal, and boxed in, except about 2 feet on the end towards the engine, with sides and end about 2 1/2 feet high; and back of this a stock car. The train was moving at the rate of 8 to 10 miles per hour. After releasing the brake at the east end of the stock car, Lounsbury attempted to go down the iron ladder on the north side of the west end thereof, to the flat car,--the only way then possible,--in order to release its brake and report on the engine in event another car was to be taken at Anamosa. When he had swung over the edge of the car, and had descended about four rounds of the ladder, he was caught by the end of one of the iron bolts referred to, and permanently injured. The court, in substance, told the jury that the defendant had the right to lay its track upon such a curve as it might deem best, and to elevate the outside rail, and that it was not required to conform the bridge to the curve, or to lay the track so its center would be in the center of the bridge. See Patton v. Railway Co., 73 Iowa, 310, 35 N. W. 149;Tuttle v. Railway Co., 122 U. S. 194, 7 Sup. Ct. 1166. The one question submitted was “whether the defendant was negligent in placing the truss of the bridge in question as near to the track as the evidence shows.” That it did was plainly alleged in the petition, and the jury was instructed, in passing upon this issue, “to take into consideration the question as to whether at that point said Lounsbury and others, as brakemen, would be required to ascend and descend cars in the discharge of their duties, while passing through the said bridge; and the mere fact that the truss was too near to admit of the passage of the plaintiff, if it was so, while riding on the ladder of the car, would not constitute negligence, unless you find that it was necessary for said Lounsbury and other brakemen, in the discharge of their duties, to be in that position, and that the ordinary use of the road at that place, and the ordinary duty of running trains, would require them to be on the side of the car while passing through the bridge.” The court thus clearly recognized the rule that, in determining whether placing a structure along a railroad track is negligence, the place where it is located, and the purposes for which it is or might reasonably be expected to be used, must be considered. It will not be controverted that a railroad company may erect buildings, tanks, or other structures for use in the transaction of the business as near the track as the necessity or convenience of the company and its patrons, or the economical use of the road, may require, having due regard for the safety of those operating trains. These are necessary, and, owing to their location at or near the stations, employés are constantly put on their guard. Nor can the railroad company be said to be negligent in permitting obstructions between stations which do not interfere in any way with the ordinary and usual operation of trains. The evidence tends to show that, as the trains approached from the east, brakemen, in the discharge of their duties as such, were required to set and loosen the brakes near to and over the bridge, and that in doing so they necessarily passed up and down the ladders at the side of the cars, and that the space at the corner of the bridge was so narrow that a man in using a side ladder at that place would be likely to be caught on the projecting bolts. Neither the necessity nor the convenience of the defendant or its patrons required so close a proximity of the rail and truss. It is urged that the bridge was of standard width, and such as is commonly in use by all railroads. No evidence in the record tends to sustain this claim. Again, it is said no accident has occurred at this bridge during the nine years of its existence. There was no evidence in support of this contention, and none was admissible. Hudson v. Railroad Co., 59 Iowa, 581, 13 N. W. 735. The necessity of the bolts projecting between two and three inches beyond the nuts does not appear, though these increased the danger of the locality. Nor can it be doubted that the truss could have been placed at such a distance from the track as to render the place safe for the work of brakemen. That railroad companies are bound to provide a track and equipments which are reasonably safe is not questioned. The truss so near the track, with the projecting bolts, was well calculated to catch and drag down any brakeman who might be required, in the performance of his duty, to be on the side of the car. Braking was habitually done in that locality and over the bridge, and the defendant was clearly negligent in failing to so adjust its truss and track and so place the bolts that the work required of brakemen might be performed with reasonable safety to themselves. Many authorities are called to our attention by the defendant. In Illick v. Railroad Co., 67 Mich. 637, 35 N. W. 708, it does not appear that braking was ordinarily required over the bridge, and it seems to have been conceded that the bridge, as originally constructed, was faultless; and the court held that the company was not bound to change it so as to conform to the more recent notions of bridge building. In McKee v. Railway Co., 83 Iowa, 622, 50 N. W. 209, a brakeman, in order to ascertain what was wrong with the running gear of a freight car, descended the ladder at the side, and, while swinging out to look under, came in contact with the wing of a fence....