O'Connor v. Chi., R. I. & P. Ry. Co.

• Decision Date: 13 February 1906
• Citation: 106 N.W. 161,129 Iowa 636
• Court: Iowa Supreme Court
• Parties: O'CONNOR v. CHICAGO, R. I. & P. RY. CO.

129 Iowa 636

106 N.W. 161

O'CONNOR

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Feb. 13, 1906.

Appeal from District Court, Jasper County; B. W. Preston, Judge.

Action at law to recover damages for the death of John O'Connor, a brakeman in the defendant's employ, due, as is alleged, to defendant's negligence. The answer was a general denial. At the conclusion of plaintiff's evidence the trial court directed a verdict for defendant, and plaintiff appeals. Affirmed.Sullivan & Sullivan and F. H. Clements, for appellant.

J. L. Parrish, C. O. McClain, and Carroll Wright, for appellee.

DEEMER, J.

Three specifications of negligence are made against the defendant: First, it is contended that the brake on top of the box car upon which plaintiff's intestate was riding was in a loose, defective, and unsafe condition; second, that there was a trapdoor on top of the car, which was raised above the level of the roof some two or three inches; and third, that the ladder on the side and end of the car was defective, in that the stirrup was bent and curved, and not in a proper place or condition. There was evidence to sustain each and all of these allegations of negligence; although as to the third there is no testimony whatever to show that it had anything whatever to do with the death of O'Connor. The real question in the case is: Was there enough testimony to take the case to the jury on the question of the other defects being the proximate cause of the death of plaintiff's intestate? The law on this point is well settled. Proof of the defective condition of the car, and of the death of the intestate, due to his being run over by the car, is not sufficient to take the case to a jury. In other words, the burden of proof was upon plaintiff to show causal connection between the alleged negligence and the injury complained of. And where the proof is equally balanced, or the facts are as consistent with one theory as another, plaintiff has not met the burden which the law casts upon him. Of course, plaintiff is not required to produce more than a preponderance of the testimony; but if his evidence does no more than create a surmise or conjecture, he cannot recover. Proof of causal connection may be direct or circumstantial, but the evidence must be something more than consistent with plaintiff's theory as to how the accident occurred. These rules are well supported by our cases. Asbach v. R. R. Co., 74 Iowa, 251, 37 N. W. 182;Wheelan v. R. R. Co., 85 Iowa, 167, 52 N. W. 119;Rhines v. R. R. Co., 75 Iowa, 597, 39 N. W. 912.

With these for our first premise, we now go to the testimony to discover if plaintiff has made this causal connection, or produced sufficient evidence to take the case to a jury on this proposition. In our analysis of the testimony we shall, of course, take that version of it most favorable to plaintiff's case. The car upon which plaintiff was seen but a short time before he was found under the wheels thereof was what is known as a M. D. T. Refrigerator car. It was part of a train bound from Eldon to Valley Junction, and was to be set out at the town of Evans, that it might be taken to Knoxville, its destination. After it had been detached from the train and started down the switch track at Evans, it was the duty of John O'Connor to board it and to set the brake, so that it might not be blown or ran upon the main track. In passing upon the switch track the car was moving in an easterly direction. There were two ladders upon the car, one on the northwest corner, and the other on the south side of the east end. The train arrived at Evans at about 11:15 p. m., the night was dark and a drizzling rain was falling. The conductor of the train, who was the last man to see O'Connor alive, testified that he (O'Connor) climbed up the back ladder on the north side of the car, and that he saw him on top of the car just after he had straightened up after climbing the ladder; that he saw him on top of the car, and that he had his light with him. Deceased at that time was at the west end of the car. The next time O'Connor was seen by any living witness was after the car had passed over him; one half of his body lying outside the south rail, and the other half between the rails. On the first and second wheels from the east on the south side of the car pieces of O'Connor's clothing were found. Plaintiff claims that O'Connor fell from the east end of the car, and that the proximate cause of his fall was the defective brake or the presence of the raised trap-door. The brake rod extended from the bottom to some distance above the top of the car, and on the top of the rod was the brake wheel. The rod was south of the center of the east end of the car, and the defective ladder was south of the brake rod, but on the same end of the car. The brake rod was fastened to the top of the car by a clamp through which the shaft passed. We quote the following testimony with reference to the condition of this brake: “As far as I could see (I was on top of the car) the brake shaft was attached to the car, with a clamp and three wood screws. There were two wood screws in the end of the car that held the clamp. The brake was not otherwise fastened to the end of the car. It was attached...