Dale v. Colfax Consol. Coal Co.
| Decision Date | 12 June 1906 |
| Citation | 107 N.W. 1096,131 Iowa 67 |
| Parties | ELIAS DALE v. COLFAX CONSOLIDATED COAL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court.-- HON. BYRON W. PRESTON, Judge.
ACTION to recover damages for personal injuries suffered by the plaintiff, while in defendant's employ as a brakeman on a coal train, in being run over by the wheels of one of the cars. There was a verdict for plaintiff and judgment thereon from which judgment the defendant appeals.
Affirmed.
Ryan Ryan & Ryan, for appellant.
L Kinkead, for appellee.
The train operated by defendant, on which plaintiff was employed as brakeman at the time he received the injuries, consisted of five cars; the two cars next to the engine being box cars, and the others coal cars. The train was being used at the time for transporting employes to the mine of the defendant company, and on the car farthest from the engine there were ten or fifteen men not having any connection with the operation of the train. At the immediate time of the accident which resulted in plaintiff's injury the train was being backed slowly eastward at the rate of from two to four miles an hour for the purpose of making a coupling with another coal car standing on a sidetrack. Plaintiff was riding on the car farthest from the engine, and in the discharge of his duties it was necessary for him to dismount from the car on which he was riding and proceed to the standing car as the train approached it, for the purpose of adjusting the knuckle of the automatic coupler, in order to make the coupling. He proceeded to dismount by stepping on the drawbar of the car on which he was riding, intending to jump from that position to the track, and run in front of the slowly moving train to the standing car, but he fell to the track, and was run over by the car on which he had been riding. Various forms of negligence were alleged in plaintiff's petition, but the court excluded from the jury the consideration of all the grounds of negligence set up by the plaintiff, except the one as to the alleged negligence of the defendant's employes, in failing to stop the train after they knew that the plaintiff was in a dangerous situation, by reason of having fallen upon the track in front of the moving train.
Complaint is made of the failure of the court to instruct with reference to the contributory negligence of the plaintiff in attempting to get from the car to the track in front of the train, and also, with reference to the assumption of risk; but in as much as the court limited the inquiry of the jury to what happened after plaintiff fell to the track, we cannot see that there was any occasion to give instructions on these matters. The question presented was one involving the doctrine of the last clear chance, and was simply this: Whether after plaintiff had, even by reason of his own negligence been placed in a position of danger, and his danger was known to the employes of defendant in charge of train, these employes used reasonable care in attempting to prevent injury resulting to him in his dangerous position. If the employes under such circumstances did fail to use reasonable care to avoid injury to the plaintiff, then the previous negligence of the plaintiff in bringing about the dangerous situation, would not be the proximate cause of the injury which he received, but he might recover for the consequences of the negligence of the defendant, if, in the exercise of reasonable care, under the circumstances and with knowledge of his danger, such injuries could have been averted.
It is evident also, that the doctrine as to the assumption of risk has no application to the question submitted to the jury. These suggestions dispose of the arguments of counsel relating to contributory negligence and assumption of risk, for there was evidence from which the jury might find, as they undoubtedly did, that after plaintiff fell to the track, he crawled or was carried more than forty feet before the wheels of the car ran over his feet, inflicting the injury for which he seeks recovery, and that his danger was apparent to the conductor, who was on the rear car, and that by prompt action of the conductor in signaling to the engineer the train might have been stopped before the final catastrophe occurred. We need not go into a detailed discussion of the evidence; it is sufficient to state the conclusions which the jury might properly have drawn from it. The rules of law applicable to such state of facts are too well settled in this state to require an elaborate citation of authorities. But see Purcell v. Chicago & N.W. R. Co., 109 Iowa 628, 80 N.W. 682; Same case, 117 Iowa 167; Morbey v. Chicago & N.W. R. Co., 116 Iowa 84, 89 N.W. 105; Gregory v. Wabash R. Co., 126 Iowa 230, 238, 101 N.W. 761; Kelley v. Chicago, B. & Q. R. Co., 118 Iowa 387, 92 N.W. 45; Barry v. Burlington R. & L. Co., 119 Iowa 62, 93 N.W. 68; Bogan v. Carolina Central R. Co., 129 N.C. 154 (39 S.E. 808, 55 L. R. A. 418), and note; 4 Current Law, 776. It should be stated further with reference to contributory negligence on the part of the plaintiff, that the court told the jury, that to warrant a verdict for plaintiff, they must find that at the time the injury was received plaintiff was free from contributory negligence, and this, we think, is all the instruction as to contributory negligence that was called for.
Error is assigned on the ruling of the court that a witness might testify as to what he heard said by persons riding on the train after plaintiff had fallen to the track and was in a position of danger, and on an instruction in which the jurors were told that they might...
To continue reading
Request your trial