Christopherson v. Chicago, Milwaukee & St. Paul R. R. Co

• Decision Date: 14 December 1906
• Citation: 109 N.W. 1077,135 Iowa 409
• Parties: CHRISTINA CHRISTOPHERSON, ADMINISTRATRIX, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL R. R. CO
• Court: Iowa Supreme Court

109 N.W. 1077

135 Iowa 409

CHRISTINA CHRISTOPHERSON, ADMINISTRATRIX, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL R. R. CO

Supreme Court of Iowa, Des Moines

December 14, 1906

REHEARING DENIED, TUESDAY, SEPTEMBER 17, 1907.

Appeal from Dickinson District Court.--HON.W. B. QUARTON, Judge.

ACTION by plaintiff, as administratrix of the estate of her deceased husband, Anton Christopherson, to recover damages for injuries causing his death, received while in defendant's employment. At the conclusion of plaintiff's evidence the court sustained defendant's motion to direct a verdict in its favor, and from judgment on such directed verdict the plaintiff appeals.

Reversed.

J. L Bascom and Francis & Owen, for appellant.

J. C. Cook and H. Loomis, for appellee.

OPINION

MCCLAIN, C. J.

The evidence admitted on behalf of the plaintiff tended to show the following facts: The deceased was in defendant's employ as section foreman, at Milford, Iowa. On the day of the accident which resulted in the death of deceased, a construction train, consisting of an engine and tender, a flat car and a caboose, came north on defendant's line to Milford, the engine with tender backing, with the flat car next south of it attached to the pilot, and the caboose at the south end. There was a crew of sectionmen on the train in charge of the roadmaster, and the object in view was to load some rails which were piled near the track into the flat car, to be transported to another place. The caboose was uncoupled and left standing a short distance south of the pile of rails, and the flat car, still attached to the engine, was stopped with its south end near the north end of the rails, in order that they might be loaded into the car from the south end instead of being thrown over the side. When the loading was about completed, the roadmaster had a conversation with deceased, west of the track and near the north end of the caboose, in which deceased was directed to proceed to a toolhouse situated about four hundred feet to the north and on the east side of the track, for the purpose of securing some bolts for fish plates, to be put on the car with the rails. About the time that deceased started north toward the toolhouse, walking on the west side of the track, the engine was started south, pushing the flat car, in order that it should be coupled to the caboose. The engine pulling the flat car and caboose was then backed northward, and deceased was struck by the north end of the tender, and thrown to the west side of the track, where he was found unconscious, about one hundred and forty feet north of the point from which he started. Deceased was carried to his home in an unconscious state, and died within forty-eight hours as the result of the injuries he had received. The grounds of the motion to direct a verdict were substantially that there was no evidence of negligence on the part of the defendant, nor of the exercise of care on the part of deceased, at the time of the accident. Other items of evidence than those above stated will be noticed in discussing the grounds of the ruling on the motion which the court sustained, directing a verdict.

I. There is no real controversy as to the sufficiency of the evidence to sustain a finding of negligence on the part of defendant's employes in operating the train so as to strike and injure deceased. According to the testimony of the witnesses, there was no signal given by ringing of bell or blowing of whistle when the train backed north, after the flat car was coupled to the caboose. The roadmaster, who, so far as the evidence discloses, was in charge of the operations of the train, knew that the deceased was proceeding northward along the track, and must necessarily cross the track north of the moving train in order to reach the toolhouse. So far as appears, there was no one at the north end of the tender keeping any lookout for the safety of deceased or any other person who might be along or upon the track, and the engineer was unable to see along the track to the north on account of the tender. Certainly, under these circumstances, the jury would have been justified in finding that with reference to deceased the defendant's employes were negligent in not taking some means to warn him of the approaching danger, for at the time he started northward the engine was moving southward toward the caboose, and there is nothing to indicate that deceased had any reason to suppose that after being coupled to the caboose the train would be moved toward the north. Indeed, if the statements of deceased, which will be referred to in the next division of this opinion, can properly be considered, the deceased supposed that, after the coupling was made, the train would proceed further south, and would not be backed up toward him.

Counsel argue that the roadmaster had charge of the work only, and not of the movement of the train, and that the conductor and engineer would have no knowledge of the fact that deceased was proceeding northward along or beside the track. But there is no evidence whatever as to these matters, and, so far as the testimony for the plaintiff discloses, the roadmaster was in charge of the movements of the train. We cannot take judicial notice of the assumed fact that the roadmaster had no control over the movements of the train, and therefore had no occasion to provide for a warning to be given to deceased when the train started northward.

It is argued by counsel that a warning by blowing the whistle or ringing the bell would have been of no value, for it would not have advised the deceased of anything which he did not already know. But certainly it was important that deceased, who had started north along the track while the engine was being moved toward the caboose for the purpose of making a coupling, should be warned when the engine was put in motion toward him after the coupling to the caboose had been made. It does not appear that he had any information as to how soon the engine might be expected to move after the coupling was effected, and it was the duty of defendant's employes when the engine was put in motion toward him, and so near him as to be reasonably likely to imperil his safety, to give him some warning. As we view the case, such warning would not have been necessarily futile, nor an act of supererogation.

II. The more difficult question is to determine whether the evidence of the freedom of deceased from contributory negligence was sufficient to take the case to the jury. As there were no eyewitnesses of the actual collision with deceased, the presumption arising from the instinct of self-preservation would be sufficient to sustain the burden of proof in the first instance, that deceased was not at fault for the accident. Phinney v. Illinois Central R. Co., 122 Iowa 488, 492, 98 N.W. 358; Morbey v. Chicago & N.W R. Co., 116 Iowa 84, 88, 89 N.W. 105; Bell v. Incorporated Town of Clarion, 113 Iowa 126, 84 N.W. 962. It is true that such presumption cannot prevail against evidence which shows that the injured party could not have exercised due care. Crawford v. Chicago G. W. R. Co., 109 Iowa 433, 80 N.W. 519. But unless the evidence conclusively shows contributory negligence, the presumption from the instinct of self-preservation should be taken into account; and the jurors, had the case been submitted to them, would have been justified in assuming that deceased was not doing a...