Bucklew v. Central Iowa Railway Co.

• Decision Date: 23 October 1884
• Citation: Bucklew v. Central Iowa Railway Co., 21 N.W. 103, 64 Iowa 603 (Iowa 1884)
• Parties: BUCKLEW v. THE CENTRAL IOWA RAILWAY CO
• Court: Iowa Supreme Court

21 N.W. 103

64 Iowa 603

BUCKLEW v. THE CENTRAL IOWA RAILWAY CO

Supreme Court of Iowa, Dubuque

October 23, 1884

Appeal from Jasper District Court.

THE plaintiff was a brakeman on a freight train, and claims to have been injured by reason of the negligence of the engineer and fireman in failing to obey a signal given by him to stop the train, so that he could with safety make a coupling it was his duty to make. The plaintiff claims to have been free from negligence on his part. Trial by jury and judgment for the plaintiff. The defendant appeals.

REVERSED.

H. E J. Boardman, J. H. Blair and A. C. Daily, for appellant.

John F Lacey and H. S. Winslow, for appellee.

OPINION

SEEVERS, J.

There was evidence tending to show the following facts: There was a freight train, consisting of an engine and several freight cars, which was moving north, for the purpose of coupling thereto a car which was standing on a side track, and it was the plaintiff's duty to make such coupling. For this purpose the train was under his charge and control. As the train moved north, the plaintiff preceded it a short distance, and, because there was no link in the south end of the car standing on the track with which to make the coupling, he gave a signal to stop the train, and, without waiting to see whether it was obeyed, he passed on to the north end of the car and stepped on the track for the purpose of procuring a link with which to make the coupling. While engaged in the performance of this duty, the train struck the south end of the car, thereby causing it to run over the plaintiff, seriously injuring him. When the plaintiff stepped on the track, he could not see the employes in charge of the train, nor could they see him, but they had knowledge that he was in such position, and what he went there for. The employes of the plaintiff understood the signal given to be to "go slow," and to this extent it was obeyed. The manner in which the signal was given was repeated and explained in the presence of the jury, and, conceding that the evidence was conflicting, the jury were warranted in finding that the signal given was to stop the train. The plaintiff was not required in the performance of his duties to step on the track until the train came to a stand; that is to say, he could have waited until then, and in so doing would not have violated any of the rules, or his obligations to the company. When the signal was given the train was moving at the ordinary switching speed. There was on the train another brakeman, and the plaintiff saw that he recognized the signal and repeated it to the engineer or fireman before he stepped on the track.

I. The court instructed the jury that the plaintiff "had a right to believe that the signal would be properly obeyed, and had a right to act on such belief." It is insisted that this instruction is erroneous, and that, under the undisputed evidence, the plaintiff cannot recover, because, as a matter of law, it appears he was guilty of contributory negligence. Counsel for the appellant have exhibited commendable industry in the citation of authorities, which, it is insisted, are analogous, but in none of them were the facts like those in the case at bar. The general rule applicable to this class of cases is well understood. The difficulty lies in its application to the particular case in hand. It is well understood that a person who is reckless, and is injured because of his own negligence, cannot recover damages for such injury. The question is whether the plaintiff was negligent as a matter of law in stepping on the track under the circumstances, and while the train was in motion, without waiting to see whether his signal would be obeyed. The only case in which this precise question has been determined, which has come under our knowledge, is Beems v. C., R. I. & P. R'y Co., 58 Iowa 150, 12 N.W. 222. In that case the decedent was attempting to uncouple certain cars while the train was in motion, and he gave a signal to check the speed of the train, and, without waiting to see whether it was obeyed or not, stepped between the cars, and was injured. It was held that he was not "necessarily guilty of contributory negligence." We are unable to distinguish that case from this, and, to a considerable extent, at least, the same may be said in relation to Berry v. Central R'y Co., 40 Iowa 564, where a car repairer went under a car on a side track for the purpose of repairing the same, with the knowledge of an employe in charge of the track, and movements of trains at that place, and it was held that he had a "right to suppose that no cars would be switched upon that track without notice to him, or, at least, that the switching would be done in a reasonably careful manner."

The only material difference between this case and Steele v. Central R'y Co., 43 Iowa 109, is that the plaintiff in that case saw that the signal to check the train was being obeyed at the time he attempted to pick up the pin which lay on the track, and it was said in that case that he was "warranted in believing his signal would be obeyed."

The fact that the plaintiff went on the track before the train stopped should not alone prevent his recovery, unless he was negligent in so doing. To have so waited would have caused delay, and we apprehend railway companies expect their employes to avoid all delays possible. The necessities of the business, and due regard to the safety of trains, their own and the lives of others, require prompt action on the part of employes in charge of trains. While this is true, recklessness cannot be tolerated. It is not believed that any general rule can be laid down. Therefore it is, and must ordinarily be, a question for the jury, whether an employe of a railway company, whose duty it is to couple and uncouple cars attached or to be attached to a train, is or is not negligent, when he goes on the track in front of a moving train in the performance of such duty. The plaintiff was rightfully on the track, and it cannot be said that he was guilty of negligence, if he took the ordinary and usual precautions for his own protection before he placed himself in that position.

In relation to the Pennsylvania Co. v. Hankey, 93 Ill. 580, we only deem it necessary to say that the question in that case was whether the appellee, in the exercise of proper care, should have made an attempt to make a coupling when the train was moving, knowing it was dangerous to do so, because of the construction of the track along which he was required to walk while attempting to make the coupling.

Counsel insist that the rule which requires travelers who are about to cross a railway track to ordinarily look and listen for an approaching train should be applied to employes who are required to go on the track in the performance of their duties. But we think such rule should not be strictly applied to an employe who is engaged in making up trains which must, in a great measure, require his undivided attention. The traveler looks, listens and crosses the track, and his duty is ended. This is not so with an employe engaged in making up trains. For it is undoubtedly true that frequently several cars are to be uncoupled, and others coupled to the train. Considerable time is therefore required. If an employe so engaged were absolutely required to look and listen for approaching trains, or unexpected movements of the train in his charge, his usefulness would be greatly impaired. We think the question as to the duty of such an employe to look and listen for the movements of trains before he steps or walks on the track must be left to the jury to determine, and, therefore, it cannot be said that the plaintiff, as a matter of law, was guilty of negligence. Ominger v. N. Y. Central R. R. Co., 4 Hun 159; Snow v. Housatonic R. Co., 8 Allen 441; I., B. & W. R'y Co. v. Carr, 35 Ind. 510; Crowley v. B., C. R. & N. R'y Co., decided at Council Bluffs term. ^[*]

II. Rule 59 of the company is in these words: "In all cases of doubt, take the safe side and run no risk." The plaintiff had knowledge of this rule, and it is insisted that he disregarded it, and, therefore, he is not entitled to recover. The rule implies that an employe must exercise judgment and discretion in determining whether danger exist if he does a thing in a certain way or at a certain time. In this respect it is different from other rules to which our attention has been called by counsel. In Ill. C. R. Co. v. Houck, 72 Ill. 285, the rule was that only 110 pounds of steam should be carried. In Shanny v. Androscoggin Mills, 66 Me. 420, the rule required that the machinery should be stopped at a certain hour for the purpose of being cleaned. In Wolsey v. R. R Co., 33...