Cowles v. Chi., R. I. & P. Ry. Co.
| Decision Date | 28 May 1897 |
| Citation | 71 N.W. 580,102 Iowa 507 |
| Parties | COWLES v. CHICAGO, R. I. & P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Iowa county; M. J. Wade, Judge.
Action to recover damages resulting from an injury to plaintiff received while in the employment of defendant. Trial to jury, verdict and judgment for plaintiff, and defendant appeals. Reversed.Robert Mather, W. T. Rankin, Hedges & Rumple, and Geo. E. McCaughan, for appellant.
Remley & Ney and Ranck & Bradley, for appellee.
The plaintiff began work for the defendant at Stuart, Iowa, February 8, 1893, helping at the roundhouse, throwing switches, making fires, and turning the turntable. After February 24th he began work at about 6 p. m., and continued through the night, and his employment was throwing switches, putting engines in and out of the roundhouse, opening and closing doors, and assisting at and turning the table under the direction of the night engineer or hostler. The roundhouse is south of the main track, and there are side tracks to the coal chute, to the clinker pit, the lumber yard, and another called the “spur to the turntable.” The roundhouse, with 31 stalls, is in the form of an arc, with the turntable in the center. Three tracks run from the yard to this table, which is about 60 feet long and about 15 feet wide, covered with 2-inch plank, and the pit is about 5 feet deep. The rails on the table are held to those of the approaching track by a clamp, which fits on the top of the flange, goes between the ends of the rails, and is fastened with a pin resting on the outside. As helper it was the duty of plaintiff to see that these clamps were right, and the table in proper condition, before the engine went on. On the Wednesday preceding the injury, and while he was assisting the hostler, Geisenhagen, as helper, an engine ran off the track, and broke a hole in the plank of the turntable, 4 or 5 feet long and 6 to 8 inches wide, some 8 or 10 inches from the rail on the outside, and within 2 1/2 feet from the end of the table. The plaintiff continued in the same employment, using the turntable every night, up to the time of the accident, with full knowledge of its condition, without making any complaint, and receiving no promise of repair. He says he saw the bridge carpenter measuring the hole on the night in question, but did not notice anything further done with it. On the night of the injury, Tuesday July 25, 1893, and about 11:30 p. m., one Adams was hostler, and the plaintiff was acting as helper. The engine was on the coal track, and from there was run on the table, and then taken to the clinker pit, where it was cleaned out; the clamps being left on the rails. The engine started back to the table with plaintiff sitting between it and the tender. When about 100 feet from the table, and moving at the rate of 3 or 4 miles an hour, steam was shut off, and the cylinder cocks opened. There was evidence tending to show that the engine should be stopped before going on the table, and wait for the signal from the helper before proceeding. When 20 or 30 feet from the table, plaintiff says he was directed by Adams to get off and see if the clamps were ready. The plaintiff got off on the left side of the engine, and walked alongside it until it was 2 or 3 feet from the table. The engineer did not check it, and the plaintiff stepped around in front of the moving engine, as he says, to see if the clamps were right, and to give the signal to come on if they were right. The engine was so close that to do this he had to step on the table, and when he did so the pilot was within a foot or so and moving slowly. He watched the engine and the table. He was brushed aside by the engine, stepped in the hole referred to, and his hand was caught under the wheel.
1. At the conclusion of the plaintiff's evidence the defendant moved the court to direct the jury to return a verdict for it, on the ground that the negligence of the plaintiff directly contributed to his own injury. This motion was overruled, and, when renewed after the introduction of all the evidence, was again overruled. These rulings only need be considered, as the evidence clearly establishes such contributory negligence on the part of the plaintiff as will preclude any recovery. He knew of the existence of the...
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