Deeds v. The Chicago, Rock Island & Pacific Railway Company

• Decision Date: 10 March 1888
• Citation: 37 N.W. 124,74 Iowa 154
• Parties: DEEDS v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY
• Court: Iowa Supreme Court

37 N.W. 124

74 Iowa 154

DEEDS v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

March 10, 1888

Decided December, 1887

Appeal from Washington District Court.--HON. J. KELLEY JOHNSON Judge.

THE plaintiff was a brakeman in the employ of the defendant on a freight train, and was injured while attempting to make a coupling of a moving train to a stationary freight car. Trial by jury, verdict for plaintiff, and judgment. The defendant appeals.

REVERSED.

T. S Wright and H. & W. Schofield, for appellant.

No appearance for appellee.

OPINION

SEEVERS, C. J.

I.

At the time the plaintiff was injured, the following rule adopted and promulgated by the defendant was in force: "Brakemen and switchmen, in coupling or uncoupling cars, must not assume that signals given to the engineer or fireman will be obeyed, when obedience to a signal thus given by a brakeman or switchman to an engineer or fireman is essential to the safety of the brakeman or switchman in the performance of a duty. He must know that the signal must be understood, and is obeyed, before he places himself in a position of danger, relying on such obedience. When he acts without such knowledge, he assumes all risk of danger arising from misunderstanding or disobedience of signals. " The plaintiff had knowledge of such rule, and the movement of the train was controlled by signals given by him to the fireman, who was acting as engineer at the time. The accident occurred at Muscatine, about two o'clock in the morning, in October, 1885. The plaintiff testified: "In undertaking to make the coupling, * * * I gave the signal to stop, walked in, took hold of the link, and got caught. * * * After giving the signal I walked off to make the coupling. * * * The train was going very slow when I gave the stop signal. About the time I took hold of the link, there was a sudden jerk, increasing the speed. It had a short distance to go, but I think they doubled that speed anyway. When I gave the signal to stop I did not intend them to stop immediately; I intended for them to slack up, or not to come any faster, not to work any more steam. * * * I did not expect them to go any faster. I did expect that they might go faster unless I told them not to. They are liable to if they do not get a signal. It is not customary to increase the speed without a signal. It is sometimes done, when an engineer gets a signal to back up. Sometimes he relies on his own judgment. * * * If they do not get a signal to slacken up in the course of business, they use their own judgment, and increase the rate of speed. Sometimes that occurs in the course of business." The court instructed the jury that if the plaintiff violated the foregoing rule, and such violation contributed to his injury, he could not recover unless the defendant had waived the rule.

II. The court instructed the jury, in substance, that the fact that the rule was violated by brakemen would not justify the plaintiff in doing so, unless some one or more of defendant's officers, charged with the enforcement of the rule, knew it was customarily violated; but that the knowledge of such officers of the violation of the rule would amount to a waiver thereof. There is no evidence tending to show what officer or officers adopted and promulgated the rule, nor is there any evidence tending to show that any officer, charged with the enforcement of the rule, knew that it was violated, and, therefore, the instructions given the jury in relation thereto are...