Collins v. Burlington, C. R. & N. Ry. Co.

• Decision Date: 09 October 1891
• Citation: 83 Iowa 346,49 N.W. 848
• Court: Iowa Supreme Court
• Parties: COLLINS v. BURLINGTON, C. R. & N. RY. CO.

83 Iowa 346

49 N.W. 848

COLLINS

v.BURLINGTON, C. R. & N. RY. CO.

Supreme Court of Iowa.

Oct. 9, 1891.

Appeal from district court, Emmet county; GEORGE H. CARR, Judge.

Action to recover for personal injuries. The case was tried to a jury, and at the conclusion of the testimony for plaintiff defendant moved for a verdict on the grounds: (1) For that by plaintiff's own showing he is guilty of such contributory negligence as to preclude his right of recovery in walking on the track, and not observing the approach of the car that struck him, and he has not shown any negligence against the company. (2) The evidence shows that the duties of the plaintiff did not require him to engage in the dangers of operating a railroad, but that he was employed solely to work at the oil-house, and perform other duties that did not require him to ride on the cars or to work about moving trains or cars operating the road; and plaintiff is therefore not within section 1307 of the Code of Iowa.” This motion was sustained, and a verdict directed and returned for defendant. Plaintiff's motion in arrest of judgment and for new trial being overruled, judgment was entered against him on the verdict. Plaintiff appeals. The errors assigned and argued are as to the ruling of the court in sustaining defendant's motion for verdict.

BECK, C. J., dissenting.

J. G. Myerly, for appellant.

S. K. Tracy and F. E. Allen, for appellee.

GIVEN, J.

1. Following the order of the motion, we first inquire whether the plaintiff was guilty of such contributory negligence as to preclude him from recovering The rule is undisputed that, if he was guilty of negligence directly contributing to cause the injuries complained of, he cannot recover, even though the defendant was negligent as charged. In pursuing this inquiry, we must not confound the testimony tending to show negligence on the part of the defendant with that relating to negligence or care on the part of plaintiff. The testimony, so far as it relates to the question of negligence on the part of the plaintiff, is in substance as follows: At the time of the accident, March 30, 1889, the plaintiff was aged 44 years, able-bodied, good hearing and sight, and with 4 years experience as an employe of defendant at its station at Estherville, as fireman on the switch-engine for several months, and the remainder of the 4 years as custodian of the oilhouse and supplies. He was familiar with the locality of the accident and the movement of trains thereat. At the time of the accident he was in charge of the oil-house and supplies, his duties being to take charge of the house and supplies, to place the switch-lights on the stands every evening, and to collect them for cleaning and filling at the oil-house every morning. Estherville was a division station on the road, the general direction of which at that point is north and south. Three tracks passed the depot building, one on the south being known as the “passing track,” the one on the north as the “city track,” the main line being between, and with which both side tracks connected north of the depot building. The switch-stand to the passing track was on the west side of the track, and further north were other side tracks, the oil-house, and the round-house. It was usual to change locomotives, and to add a combination mail and express car to the train arriving from the south about 7 A. M. each day, for the purpose of the run further north. The combination-car, on returning from the north, was left standing on some one of the several side tracks, and in the morning, before the arrival of the train from the south, was set in upon the passing track. This car was usually put into the train by the south-end engine drawing it north from the passing track onto the main line, and pushing or “kicking” it back to the train on the main line, with a brakeman on board to control its movements. Several witnesses familiar with the way this car was put into the train testified that they never saw it done differently, and that they never knew it to be pushed back onto the passing track after it had been pulled out.

On the morning of the accident there was a box-car in the train which necessitated some additional movements in disposing of it, and getting the combination-car in place in the train. It appears that after the combination-car had been pulled onto the main line it was pushed or kicked back in onto the passing track, instead of along the main line, as was usually done. This movement was necessary for the purpose of disposing of the box-car, and getting the combination-car in place. While this switching was being done, the plaintiff started from the depot building north, between the passing track and the main line, towards the switch-stand west of the passing track, for the purpose of getting the lamps. He testifies as follows: “When I got about half way between the clearing post and switch-stand I saw the mail and express car and engine coming along at a good jog up the main track back up to me. It came into my head that there was a team crossing the track at the depot. I turned, and saw there was, and stepped over or just back, and stopped on the track switch, and called Mr. Sargent's attention that there was a team on the track; that the car was coming up there. The team was standing on the main line. As soon as I saw Mr. Sargent turn round, I turned to get the switch-light as the car struck me. I did not get turned around. I was kind of turned around when the car struck me. * * * When I saw this car and engine they were on this street crossing, moving down on the main line towards the depot. Did not notice how fast they were going. Did not stop to look whether it was on the main line or passing track. I took it for granted it would go down the main line. Don't know anything about the advice the boys were giving Pingry about driving his team. That was not what made me turn round. The reason I turned around was, when I saw the car coming on the main line, I supposed it was coming down the main line, and knew this team was in on the track, and I turned around to see if it was there. It was on the track when I turned around. * * * From my own knowledge, could not say there was no brakeman on the car, but I saw none on the car.” As to these statements, there is no conflict, and we are to determine therefrom whether they showed such negligence on the part of the plaintiff as entitled the defendant to a verdict.

2. It will be seen that the plaintiff went upon the track when he knew it was dangerous for him to do so because of the switching, and that he might have avoided that danger by going at a different time. Being on the track, he saw the car, without a brakeman on the front end, approaching him within 100 feet, “at a good jog, twice as fast as usual.” He, without looking to see upon which track, when a single glance would have revealed the fact, stepped upon the passing track, and was injured. Surely, such actions, unexplained, cannot be considered other than the grossest negligence.

Two facts are argued in explanation, either of which it is claimed show that he was not negligent, to-wit, the custom of moving the car on the main line, and that the plaintiff in the line of duty had turned to warn the man with a team on the crossing. There was no inflexible rule that prevented the defendant from moving its car back upon the passing track, if, as in this instance, its business required it. It was the custom for defendant's train to go west at 7 A. M., but it would be no excuse to one who saw it coming that he turned his back, and did not get off the track, because the train was behind time, and not passing as was customary. If we may call the practice of moving the car a custom, still it was a custom that was liable to be varied, and the plaintiff must have known that the car might rightfully be moved back onto the passing track, and, in the absence of other excuse, he must be held negligent in not looking to see upon which track it was approaching. If he was rightfully and necessarily upon the track, and the circumstances were such as to prevent him from seeing or knowing upon which track the car was coming, then he might...