Canon v. Chi., M. & St. P. Ry. Co.
| Decision Date | 10 April 1897 |
| Citation | 70 N.W. 755,101 Iowa 613 |
| Parties | CANON v. CHICAGO, M. & ST. P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Palo Alto county; W. B. Quarton, Judge.
Plaintiff's intestate, when killed, was in the service of the defendant company at the city of Perry, Iowa, as a car inspector. At said city the defendant has located somewhat extensive yards, having numerous tracks, and it is also a freight division station. From the pleadings and evidence it appears that the duty of deceased was, on the arrival of a train, to go along the side of the same, and to go under the cars and in between the cars and examine and inspect the same, for the purpose of discovering defects in said cars, making a note in a book of defects discovered, and marking cars which were found to be in bad order. Plaintiff was killed under the following circumstances: On January 19, 1895, while in the employ of the defendant company as such inspector, and after he had finished inspecting the first four cars at the west end of the train, the yard master, Applegate, who had charge of the making up of trains in said yards, came to him and told him he (the yard master) wanted the fourth car from the west end of the train. Canon told him he could have it; it was all right; and also told Applegate not to throw any cars in on his track; that he was not through “inspecting this side yet”; and Applegate answered him, “No, I won't Jim,” or, “Then I won't, Jim.” Thereupon Applegate uncoupled the said four cars, and they were pulled out, and some of them switched on to other side tracks. Afterwards the engine returned with two cars, and they were kicked back upon the track upon which the cars were standing which Canon was still inspecting, with such force as to move the whole train from 12 to 16 feet. Canon, being between the cars, was killed. The evidence showed that, when trains were to be inspected, it was the usual custom to uncouple the road engine from the train, and leave the train standing still until the inspection was completed; that it was not usual or the custom to move a train that was being inspected, or to run cars down the track upon or against such a train. When the inspector was through, he would give a signal to the switchman which indicated that he had finished the work of inspecting the train. It was not usual or customary to move a train that was being inspected before this signal was given. If a car in the train which was being inspected was wanted before the inspector had finished his work, the yard master would go to the car inspector and ask permission to take it out. The petition charges negligence on the part of defendant's employés in kicking said cars against the train which was being inspected, and it is averred that plaintiff's intestate was in the exercise of due care when killed. The defenses are that the death of Canon was caused by his own negligence; that he assumed the hazard, as one incident to his employment; that his death resulted from his violation of the rules of the company. To that division of the answer pleading the rule and its violation, the plaintiff replied in denial, and averred that the rule had no application to a case like this, and that it had been waived by the company. The cause was tried to the court and a jury, and at the close of the evidence introduced on behalf of the plaintiff the defendant moved for a verdict in its favor because the plaintiff had failed to establish a case entitling her to recover, because it appeared that the negligence of plaintiff's intestate directly contributed to produce his death, and for the reason that said intestate was not within the provisions of section 1309 of the Code. The court sustained the motion, and a verdict was returned for the defendant, upon which judgment was entered. Plaintiff appeals. Reversed.Shortley & Harpel and C. E. Cohoon, for appellant.
J. C. Cook and George E. Clark, for appellee.
1. The controlling question in the case is whether the employment of plaintiff's intestate was such as to bring him within the provisions of Code, § 1307. That section provides that “every corporation operating a railway shall be liable for all damages sustained by any person, including employés of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employés of the corporation, and in consequence of the willful wrongs, whether of commission or omission of such agents, engineers or other employés, when such wrongs are in any manner connected with the use and operation of any railway, on or about which they shall be employed.” Counsel for appellee contend that in view of the custom as shown by the evidence in this case, the employment of plaintiff's intestate “did not contemplate the hazards of moving cars or trains while he was engaged in the work of inspection,” and that, by permitting the cars to be taken from the train before...
To continue reading
Request your trial