Crowley v. Burlington, C. R. & N. R. Co.

• Decision Date: 18 September 1884
• Citation: 65 Iowa 658,20 N.W. 467
• Parties: CROWLEY v. BURLINGTON, C. R. & N. R. CO.
• Court: Iowa Supreme Court

65 Iowa 658

20 N.W. 467

CROWLEY

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

Supreme Court of Iowa.

Filed September 18, 1884.

Appeal from Benton district court.

The plaintiff seeks to recover damages by reason of the alleged negligence of the employes of defendant, whereby plaintiff was struck and injured by a moving car. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.J. & S. K. Tracy, for appellant.

Bowman & Swisher, for appellee.

ROTHROCK, C. J.

The plaintiff was employed by the defendant as a laborer in cleaning snow and ice from its tracks and switches, and he claims that on the ninth day of February, 1881, while so employed in the yard of defendant at the city of Cedar Rapids, the defendant negligently caused one of its cars, with great force, and at a speed in violation of the ordinances of said city, to strike plaintiff, and to run on and over his right arm, by which he was greatly injured, and that such injury was received without any negligence on his part. The answer, in addition to a general denial, avers that if plaintiff was injured by a moving car it was by his own want of proper care and caution in not looking and listening for moving cars, and in not keeping out of the way of such cars.

The plaintiff was a witness upon the trial, and his testimony, as abstracted by appellant, is as follows: “I am plaintiff in this suit. Am 51 years old, and live at Cedar Rapids. At the time of the accident I was working for defendant as a section hand in its yards at Cedar Rapids, cleaning out snow from the switches. There was a little ditch at the switch, I was cleaning out, so the water could run through. Just before I got hurt I was standing outside of the track, between it and a snow-bank, which was three or four feet high, at the side of the track, cleaning this ditch. I always looked every once in a while. I was very careful and looked out for myself, because I was a little hard of hearing, and it made me more cautious to look out. It had been thawing, the snow had melted, and the water was running. The accident happened in the afternoon, at about three or four o'clock. A car came along and was pretty close to me, when I raised my head and looked. I then jumped to get out of the way of the car, and my foot slipped or caught in some way, I can't tell how, and before I could get out of the way, the car came up and hit me, knocked me down on my face and hands, and broke my arm in three places. I had been working for the company about four years. At the time I got hurt I was getting one dollar and twenty-five cents per day. My arm is very painful yet, and I suffered awfully, and can hardly do anything at all. I had been working about two months in this yard before I got hurt. There is a great deal of switching done there in the yard, and cars are moved up and down constantly, and hence it is a dangerous place to work unless you look out and watch. At the time, I was cleaning the snow out of the track and this little ditch, and was standing on the west side of the track, between the snow-bank and the track. The track is nearly straight there. You can look down the track (south) some two or three hundred yards. You can see the track down to the switch target. I did not see this car coming until it was close onto me. Then I attempted to get away from the track, and my foot slipped, and the car struck me. I was outside of the track, between it and the snow-bank, when I slipped and fell.”

The plaintiff, in an additional abstract, sets forth the following as an amendment to his testimony: “During February, 1881, at the time I got hurt, I was section hand or repairsman on the B., C. R. & N. Ry., and my run was from Cedar Rapids to Linn Junction. I went out on the line on a hand car. I was under the direction of an overseer or boss. I was directed by the boss, on the morning of February 9th, to clear the switches on the track, so that the water would go from the switches. When I was clearing out the switches there was a bank of snow beside the track. I was cutting a drain through the bank of snow to let the water from the switch into the street. At the time the car struck me, as near as I can remember, I was standing with my face towards the track, on the outside, kind of half towards the track,--in between the track and bank of snow. The...