Cook v. Union Pac. R. Co.

• Decision Date: 29 June 1916
• Docket Number: No. 30460.,30460.
• Citation: 158 N.W. 521,178 Iowa 1030
• Parties: COOK v. UNION PAC. R. CO.
• Court: Iowa Supreme Court

178 Iowa 1030

158 N.W. 521

COOK

v.UNION PAC. R. CO.

No. 30460.

Supreme Court of Iowa.

June 29, 1916.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Action to recover damages for personal injury based on the federal Employers' Liability Act. Opinion states the facts. Verdict and judgment for the plaintiff. Defendant appeals. Affirmed.Edson Rich and A. G. Ellick, both of Omaha, Neb., and George S. Wright, of Council Bluffs, for appellant.

Mayne & Green and Thomas Q. Harrison, all of Council Bluffs, for appellee.

GAYNOR, J.

Plaintiff brings this action as administratrix of the estate of one Paul O. Cook, under the provisions of the federal Employers' Liability Act. She brings it for the benefit of herself, as surviving widow, and for the benefit of six minor children under the age of 14 years, claiming that they were all wholly and solely dependent on the deceased for maintenance and support. As a ground for action, she claims that on the 21st day of March, 1913, Cook was in the employ of the defendant as a brakeman on one of defendant's freight trains moving from Grand Island, Neb., to Council Bluffs, Iowa; that when the train on which he was riding reached Central City, Neb., he was on the top of one of the cars pursuing his duty as brakeman, and was sustaining himself by holding onto a handhold or grabiron on the roof of the car, at the top of the ladder, which extended down the side of the car; that, while he was so sustaining himself, the handhold or grabiron, not being secure, gave way by reason thereof, and deceased fell violently to the ground and received injuries which caused his death; that the deceased was not guilty of any fault or negligence on his part, contributing to his injury and death, but his injury and death were due to the negligence of the defendant in this, that the handhold or grabiron on the roof of the car on which he was seated, and of which he had hold just prior to the accident, was not secure as required by law, but, on the contrary, was unsafe and insecure; that, by reason of his death, she has suffered damages.

Defendant, answering this petition, admits sufficient facts to bring the case within the federal Employers' Liability Act; admits that Cook was an employé in the service of the defendant as brakeman; admits that he came to his death near the town of Central City, Neb., on March 21, 1913; but alleges that his death resulted from dangers and risks which were open, obvious, apparent, and known to the deceased, and which were incident to his employment, and assumed by him; that he was guilty of negligence which proximately contributed to his death. Defendant further alleges that on March 13, 1911, the Interstate Commerce Commission of the United States extended the period of time within which defendant, and all common carriers, were required to comply with the provisions of the Safety Appliance Act, in so far as the act required defendant to equip its freight cars with roof handholds at the top of the ladder. Defendant also filed a general denial to all the allegations of plaintiff's petition not specially admitted.

Upon the issues thus tendered, the cause was tried to a jury, and a verdict returned for the plaintiff. Upon this verdict, judgment being entered, defendant appeals.

The first question presented involves the sufficiency of the evidence to sustain the verdict, and on this point it is contended that there was not sufficient evidence to show that there was, in fact, an insecure handhold on the top of the car from which deceased fell, and, if such is shown to be the fact, the evidence does not affirmatively show that the insecure handhold was the proximate cause of his fall from the car and the injuries consequent thereupon. Or, in other words, that the proofs offered and introduced by the plaintiff do not sustain the issue tendered by the plaintiff, upon which she predicates her right to recover.

The second question involves the construction to be given to the act of the Interstate Commerce Commission in extending the time for compliance with the provisions of the acts of Congress, requiring cars to be equipped with handholds or grabirons on the top, with the further question involved that conceding the act of the Interstate Commission, applied to certain cars used by the defendant, and extended the duty of complying with the requirements of the act of Congress until July 1, 1916, on whom rested the burden of proof to show that this car, if not supplied with secure handholds, came under the exception, and not under the rule of the statute.

We will take up the second proposition first.

[1] The foundation of the present Safety Appliance Act was passed and approved March 2, 1893. See 27 Statutes at Large, p. 531, c. 196 (U. S. Comp. St. 1913, §§ 8605-8612). This act was passed to promote the safety of employés by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving wheel brakes, and for other purposes. Section 4 of this chapter provides:

“That from and after the 1st day of July, 1895, until otherwise ordered by the Interstate Commerce Commission, it shall be unlawful for any railroad company to use any car in interstatecommerce that is not provided with secure grabirons or handholds in the ends and sides of each car, for greater security to men in coupling and uncoupling cars.”

Certain amendments were made to this statute and approved March 14, 1910, and March 4, 1911. These may be found in 36 Statutes at Large, pages 298, 1397, respectively (U. S. Comp. St. 1913, §§ 8617, 8620). It will be noted that there is no provision in these acts relating to handholds on top of cars. An act approved April 14, 1910, supplemented the act hereinbefore referred to, and is found in 36 Statutes at Large, at page 298.

The sections material to this controversy are sections 2 and 3 of chapter 160 of this act, which provides:

Section 2: “That on and after July first, nineteen hundred and eleven, it shall be unlawful for any common carrier subject to the provisions of this act to haul or permit to be hauled or used on its line any car subject to the provisions of this act not equipped with appliances provided for in this act, to wit: All cars must be equipped with secure sillsteps and efficient handbrakes; all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure handholds or grabirons on their roofs at the tops of such ladders: Provided, That in the loading and hauling of long commodities, requiring more than one car, the handbrakes may be omitted on all save one of the cars, while they are thus combined for such purpose.”

Section 3: “That within six months from the passage of this act the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances provided for by section two of this act and section four of the act of March second, eighteen hundred and ninety-three, and shall give notice of such designation to all common carriers, subject to the provisions of this act by such means as the commission may deem proper, and thereafter said number, location, dimensions, and manner of application as designated by said commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this act, unless changed by an order of said Interstate Commerce Commission, to be made after full hearing and for good cause shown; and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to a like penalty as failure to comply with any requirement of this act: Provided, that the Interstate Commerce Commission may, upon full hearing and for good cause, extend the period within which any common carrier shall comply with the provisions of this section with respect to the equipment of cars actually in service upon the date of the passage of this act. Said commission is hereby given authority, after hearing, to modify or change, and to prescribe, the standard height of drawbars and to fix the time within which such modification or change shall become effective and obligatory, and prior to the time so fixed it shall be unlawful to use any car or vehicle in interstate or foreign traffic which does not comply with the standard now fixed or the standard so prescribed, and after the time so fixed it shall be unlawful to use any car or vehicle in interstate or foreign traffic which does not comply with the standard so prescribed by the commission.”

Subsequent to the passage of this act, and on March 13, 1911, the Interstate Commerce Commission, in pursuance of the authority vested in it by section 3, last above quoted, designated the dimensions, location, and manner of application of roof handholds, and on the same day, and in pursuance of the authority vested in them under said section, made and enacted the following:

“Carriers are granted an extension of five years from July 1, 1911, to change and apply all other appliances on freight train cars to comply with the standards prescribed in said order, except when a car is shopped for work, amounting to practically rebuilding body of car, it must then be equipped according to the standards prescribed in said order in respect to handholds, running boards, ladders, sillsteps and brakestaffs: Provided, that the extension of time herein granted is not to be construed as relieving carriers from complying with the provisions of section 4 of Act March 2, 1893, as amended April 1, 1896, and March 2, 1903.”

Analyzing these statutes, we find that section 4 of Act March 2, 1893, 27 Statutes at Large, page 531, required that all cars engaged in interstate commerce should be provided with secure grabirons or handholds in the ends and sides of the car, and...