O'Conner v. Ill. Cent. Ry. Co.

• Decision Date: 29 May 1891
• Citation: 83 Iowa 105,48 N.W. 1002
• Parties: O'CONNER v. ILLINOIS CENT. RY. CO.
• Court: Iowa Supreme Court

83 Iowa 105

48 N.W. 1002

O'CONNER

v.ILLINOIS CENT. RY. CO.

Supreme Court of Iowa.

May 29, 1891.

Appeal from district court, Woodbury county; G. W. WAKEFIELD, Judge.

Action for personal injury. Judgment for plaintiff, and the defendant appealed.J. F. Duncombe, for appellant.

J. N. Weaver, for appellee.

GRANGER, J.

1. In January, 1889, the plaintiff was in the employ of the defendant company, engaged in switching cars to and from the Union stock-yards and the pork and beef packing houses in and about the city. On the 14th day of that month the defendant company was moving a Chicago refrigerator car by pushing the same ahead of an engine from the transfer track of the company over the Union stock-yards track to the Silberhorn packing house, when the car was derailed on a curve of the track, and the plaintiff, being on the car, was thrown therefrom, and injured. The allegations of the petition showing the negligence of the defendant are as follows: “That said refrigerator car on which plaintiff was so riding was so defectively constructed in its trucks and running gear that it would not turn a curve on the defendant's said railroad tracks, and when at or about the point above mentioned, and being so removed, said car, on account of said defective construction, jumped the track, and became derailed, whereby plaintiff was thrown from the top of said car to the ground with great force and violence, inflicting upon plaintiff serious and permanent injuries,” etc. “That said injury to plaintiff was caused wholly by the defendant's negligently using and permitting to be used said car so defectively constructed, and through no fault of plaintiff, by reason of all which plaintiff has been damaged to the sum of $5,000.00, no part of which has been paid.” After verdict, defendant moved in arrest of judgment as follows: “(1) As grounds in arrest of judgment the defendant says that the petition in this case is defective and does not show a cause of action, in that it does not state that the defect in the construction of the running gear and trucks of the car from which plaintiff is alleged to have fallen was known to the defendant, or might have been known to the defendant by the exercise of ordinary care. (2) The petition does not allege that the defendant had knowledge or notice of the negligence complained of, either actual or constructive.” A motion in arrest of judgment is available only when “the facts stated by the petition do not entitle the plaintiff to any relief whatever.” Code, § 2650. A correct test of the sufficiency of the petition to entitle the plaintiff to any relief is to admit the facts pleaded, and to determine the law applicable thereto. Applying the test to this case, we have these facts: The refrigerator car was so defective in its running gear that it would not turn a curve on defendant's road; that on account of such defective construction it became derailed, and plaintiff, without fault on his part, was thereby injured; and that the injury was caused by the company negligently using or permitting to be used the car so defectively constructed. The averments are to this effect: that the defendant, by negligently using a defective car, injured the plaintiff without his fault. Under the law, a party is liable for injuries resulting from his negligence to which the other party does not contribute. The plaintiff has in general terms averred negligence in the use of the car. Such negligence could only be proven by showing the knowledge, “actual or constructive,” which appellant claims should be alleged. The allegation claimed would only make the petition more specific. If stated in the petition, nothing more than negligence would be pleaded. The facts there stated as grounds for the motion go rather to the form or manner of pleading negligence than to its substance or the ultimate fact, and a motion in arrest is not available in such cases. Dist. Tp. of Coon v. Directors Dist. Tp. of Providence, 52 Iowa, 287, 3 N. W. Rep. 104;Edgerly v. Insurance Co., 43 Iowa, 587.

2. It is next urged that the verdict is without support in the evidence. The car in question is one of a series of 63 in number, manufactured by the Lafayette Car-Works for the Chicago Refrigerator Car Company in October, November, and December, 1888, and is numbered 11,057. It was delivered to the defendant company in December, 1888, and by that company taken to Sioux City, Iowa, and went over the track and around the curve where it was afterwards derailed, loaded at the packing-house, and back over the track to the company's line, and thence to Chicago, and was again taken to Sioux City on the 11th of January, 1889. On the 13th of January--the day before the accident--the car was examined by the car inspector for the company, and the car found to be in perfect order. Mr. Swift, the car inspector, says: “I looked it all over carefully and...