Douda v. Chi., R. I. & P. Ry. Co.

• Decision Date: 26 January 1909
• Citation: 119 N.W. 272,141 Iowa 82
• Parties: DOUDA v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

141 Iowa 82

119 N.W. 272

DOUDA

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Jan. 26, 1909.

Appeal from District Court, Linn County; J. H. Preston, Judge.

Action to recover damages for personal injuries sustained by plaintiff while in the employ of defendant Verdict and judgment for plaintiff Defendant appeals. Reversed.Carroll Wright, J. L. Parrish, and Grimm, Trewin & Moffitt, for appellant.

Barnes & Chamberlain and S. K. Tracy, for appellee.

LADD, J.

Plaintiff's employment at the time of his injury was that of cleaning out clinkers from the fire boxes of defendant's engines in its roundhouse at Cedar Rapids. The usual method of performing this work was to drop the “dump” by means of a bar from outside the wheels of the engine while it was standing over the ash pit, and to replace the dumping mechanism in the same way. But in this particular instance the plaintiff thought it necessary to crawl under the engine into the ash pit in order to close the dump. He advised the “hostler” in charge of the engine, who was in the engineer's cab, of his intention to go under, having had the engine moved to what he considered a proper place for that purpose, and then proceeded to crawl, feet first, through the narrow opening between the drive wheels and above the side bar or connecting rod. When his body was part way through, the engine moved backwards, and the consequent rising of the side bar pinched or crushed the plaintiff, causing the injuries of which he complains. There was a question under the evidence as to whether plaintiff was not guilty of contributory negligence in attempting to go under the engine at all, or in attempting to go under it in the manner above described, but there is no complaint as to the instructions with reference to contributory negligence, and that feature of the case may be passed without further notice.

The defendant is alleged to have been negligent in two respects. (1) In that its hostler in charge of the engine, with knowledge that plaintiff was under it, without warning him started, moved, or permitted the engine to move; and (2) the engine was unsafe and defective, in that it would start forward without the lever being moved or steam being turned on or any action of the person in charge, and defendant, knowing this and plaintiff's position, took no precaution to prevent this, but allowed the engine to move, and thereby injure him. The evidence failed to point out any defect in the engine, or that it had ever started before without steam being turned on, or that defendant had any reason to anticipate such an occurrence. Nevertheless the jury was instructed that if they found “that said locomotive was unsafe and defective, in that it would start after being stopped without moving the lever therefor or turning on the steam for the purpose of starting it, and that it would with the knowledge of defendant or its employés in charge thereof start without any action on the part of those in charge thereof, and the defendant took no precaution or safeguards to prevent its said movements, and that said locomotive was by reason thereof and the careless and negligent acts of the person in charge thereof, without notice or warning or signal to the plaintiff, started and permitted to run upon the body of plaintiff while under said engine and doing said work, and that by reason thereof plaintiff was injured,” then, if such injuries were without fault of plaintiff contributing thereto, plaintiff was entitled to recover. Even though this instruction be conceded to be correct in the abstract, the evidence was not such as to authorize it. There was nothing in the record to charge the employés operating the engine with knowledge of any defect therein or to indicate any information concerning it on defendant's part. Even if the engine be conceded to have been defective, this was not shown to have been apparent or discoverable on reasonable inspection, nor does it appear from the evidence that the defect had existed prior to that night, or that defendant was negligent in failing to discover and repair it or in using it in the condition it was in. So...