Cahill v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 05 June 1909 |
| Parties | WILLIAM CAHILL, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Scott District Court.--HON. J. W. BOLLINGER, Judge.
ACTION at law to recover damages for injuries received by plaintiff due to the collision of an engine which he was operating with one of defendant's trains. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
Lane & Waterman and Cook, Crocker, Loomis & Tourtellot, for appellant.
Ely & Bush and M. J. Wade, for appellee.
The action was originally brought against the Davenport, Rock Island & Northwestern Railway Company and the Chicago Milwaukee & St. Paul Railway Company. We shall hereafter call one the "Davenport Company" and the other the "Milwaukee Company." It appears that the Davenport Company's road runs east from Davenport to Clinton, and that the Milwaukee Company was using the same line for the conduct of its business between these two places. When running on the Davenport Company's line, the Milwaukee Company was subject to the rules of the former company and to the orders of its train dispatcher. Plaintiff was in the employ of the Davenport Company as an engineer of its work train, which was known as "No. 21," and on the day of the accident in question, May 1, 1907, he was out on the road with his train and at Princeton station which is about twenty miles east of Davenport and about five miles east of a station known as Le Claire. When at Le Claire at about 1:45 p. m., he received the following train order "Work extra No. 21 will work 1:45 p. m. until 5 p. m. between Princeton and Le Claire, protecting against extra 849 east after two ten (2:10) p. m., and against extra 1021 east after two forty-five (2:45) p. m., and protect against 841 west after two thirty (2:30) p. m. I. A. S." After receiving the order, plaintiff took his train west from Princeton to Le Claire and ran it upon a siding at the latter point; the engine being at the west end of the train. The train consisted of nine or ten cars with the engine. It was run in upon the side track so as to clear. As we understand it the train arrived at Le Claire and was registered at 2:10 p. m. Plaintiff's engine was short of water, and the conductor of the train, who was on the engine with plaintiff, said, "We will back up and get water." Pursuant to this direction, the engine was cut off from the train and started west to the water tank. In moving west it was coupled onto a coal car which stood upon the siding, and the engine, pushing the coal car, moved backward onto the main track and stopped at the water tank. Collister, the conductor, then said to plaintiff that he would see where 849 was, and he walked back, eastward toward the depot, which was two hundred and twenty-five feet from the water tank. He reached the depot, and had but time to ask the operator where the train was, when he heard the whistle of the engine on that train which was coming from the west. Upon hearing this he started to run toward the west, but soon turned round and started toward the engine of his own train. When plaintiff saw train No. 849 coming toward him, he started his engine toward the east to avoid the collision, but had gone only a little way when the engine of 849 struck the coal car, and plaintiff, who was leaning out of the cab window of his engine, was thrown therefrom and received severe injuries. It is for these that he seeks to recover damages.
It is claimed that when Wiegand, the engineer of train No. 849, saw plaintiff's engine, he did all in his power to stop it, and that when he saw a collision was inevitable, and that the water spout at the tank was across the track, both he and his fireman jumped in order to save themselves from injury. Train No. 849 passed the Le Clair depot at 2:14 p. m. The negligence charged against the Milwaukee Company is: (1) That it ran its train 849 into Le Claire at a high and dangerous rate of speed; (2) that it violated a rule requiring trains to reduce speed in passing through yard limits and to proceed only as the way is seen or known to be clear; (3) that it violated a special rule as to Le Claire station to the effect that in approaching said station the engineer was to reduce speed and have his train under control until the engineman saw that the way was clear; (4) that train No. 849 went by a stop signal at Le Claire, against a rule providing that a train must not pass while the "stop" signal is indicated; and (5) that the engineer of No. 849 negligently failed to stop his train before the collision. Certain rules of the Davenport Company which were also applicable to the Milwaukee Company are important to the case, and we here set them out. The first is known as "No. 99," reading as follows: Other rules read:
"No. 105. Both conductors and enginemen are responsible for the safety of their trains, and under conditions not provided for by the rules must take every precaution for their protection.
No. 106. In all cases of doubt and uncertainty, the safe course must be taken and no risks run.
No. 204. Train orders must be addressed to those who are to execute them, naming the place at which each is to receive his copy. Those for a train must be addressed to the conductor and engineman and also to any one who acts as pilot. A copy for each person addressed must be supplied by the operator.
No. 210. Conductors must show their train orders to flagman and engineman to fireman, who are required to read them.
No. 220. Train orders, once in effect, continue so until fulfilled, superseded or annulled."
In addition to these were the following:
On the issues joined the jury returned a verdict in favor of the Davenport and against the Milwaukee Company, and in answer to special interrogations made the following findings: ...
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