Ford v. Chicago, Rock Island & Pacific Railway Co.
| Decision Date | 18 May 1894 |
| Citation | 59 N.W. 5,91 Iowa 179 |
| Parties | MARY FORD, Administratrix, Etc., v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Cedar District Court.--HON. J. H. PRESTON, Judge.
ACTION to recover damages resulting from the death of H. P. Ford. Trial to jury. Verdict and judgment for plaintiff. Defendant appeals.
Reversed.
Cook & Dodge and Wolf & Hanley for appellant.
Wheeler & Moffit for appellee.
I.
Plaintiff's intestate, H. P. Ford, was, on and prior to December 13 1890, employed by the defendant as a yard switchman and brakeman in its yards at West Liberty, Iowa. He had been in defendant's employ for over five years, though he had been engaged in this yard service for only three months prior to his death. He was forty-five years old, of good habits and character; and had been recently married. He was earning forty-five dollars per month. His duties required him to couple and uncouple cars, and assist in making up trains under the direction of the yardmaster. The east switch in said yards is about ninety feet west of the east line of Columbus street. Defendant's main track crosses said street at a right angle, and the east line of the street enters upon defendant's inclosed right of way; and at this point defendant had erected and maintained a cattle guard, which was constructed of ties or timbers laid crosswise of the track, with open spaces between the same about eight inches wide, covering an open ditch, about three feet deep. Prior to his death, Ford well knew the location and character of the cattle guard, and frequently passed over it. On December 13, 1890, deceased was engaged with the engineer and fireman of the switch engine, and with another brakeman (all servants of the defendant), in switching some cars from a point east of the cattle guard to the switches west of said guard. At a point about seventy-five feet west of the cattle guard, Ford stepped between two of the moving cars to uncouple them. The pin which he tried to pull stuck and he took another pin, and attempted to pound out the stuck pin,--the cars moving at such speed that Ford could walk between them along the track,--and, while thus engaged in trying to uncouple the cars, Ford stepped between the ties of the cattle guard, and was instantly killed by the cars running over him. The above facts are undisputed. Other facts which we think may be treated as established will be considered hereafter. The negligence charged is in not constructing and maintaining "a good, safe, and sufficient cattle guard, as by statute provided." It is also averred that plaintiff's intestate did not contribute by his negligence to produce his death. The answer takes issue on the averments of the petition that the intestate was not guilty of contributory negligence; charges that intestate, with full knowledge of the condition of the cattle guard, remained in defendant's service, and that the risk incurred was incident to the service which intestate contracted to perform; that intestate gave the signal on which the train was being moved when the accident occurred, and the intestate then had full control of the train; that intestate negligently, and in violation of the rules of defendant, went between the cars, while in motion, to uncouple them. In a reply, plaintiff pleads notice to defendant as to the dangerous condition of the cattle guard, and its agreement to fix the same, as an excuse for continuing in its service; denies that the danger intestate incurred was a risk incident to the service which he contracted to perform; says the rule pleaded by defendant was advisory only, and had been abrogated. The case was tried by the court below upon the theory that it was incumbent upon defendant to maintain a good, sufficient, and safe cattle guard at the place where it was located, for the uses and purposes for which defendant habitually used it; that, if there was a neglect of defendant in constructing and maintaining a cattle guard, then any contributory negligence of intestate would not defeat a recovery.
II. Defendant offered in evidence a time-table of the Chicago, Rock Island & Pacific Railway Company for lines east of the Missouri river, Iowa division (which took effect October 19, 1890), with the printed rules attached thereto, and offered rule 31, printed on said time-table, which reads: This evidence was objected to--First, because the rule was merely advisory; second, that its violation by an employee is no defense in such an action, unless in its violation the employee is guilty of negligence proximately contributing to his injury; and, third, that under Code, section 1288, the defense of contributory negligence is barred. It is conceded that the timetable and rule printed thereon and offered was in force when intestate was killed, and no objection was made as to the manner of proving the rule, and it is also agreed that intestate had knowledge of the rule since October 19, 1890. The objections were sustained, and an exception taken. We think the court erred in its ruling. This rule may in one sense be said to be advisory, yet it is more than that. It is a plain and positive direction to the employee not to take any risk in the manner stated therein. It was material as affecting the question of the intestate's negligence, and should have been admitted. If, as is claimed, it was abrogated by acts of the employees, known to the proper officers, that would be a matter for the consideration of the jury under the evidence, but would not affect the question of its admissibility. While such rules can not be made a means of legal escape from liability by the company, when they are not made with the expectation of being enforced, still a rule like that offered, made in good faith, and with the intention of being enforced, and having for its object the prevention of injuries to employees, is in the interest of humanity, and serves a useful purpose. The ground of the objection upon which the rule was excluded seems to have been the third--that contributory negligence was no defense. This same question is raised by instructions given by the court. The determination of this question involves a construction of section 1288 of the Code, which provides that
It is contended by appellant that while the effect of the provisions at the close of the section quoted is to relieve plaintiff from proving his own freedom from contributory negligence in order to recover, the defendant still has thereunder the right to make any defense it may have, including the contributory negligence of plaintiff, while appellee claims that no contributory negligence of the intestate will affect plaintiff's right to recover. Assuming, now, that under the law it was defendant's duty to erect and maintain such a cattle guard as would be safe for the purposes for which it must be used, situated as it was, does the section quoted eliminate the defense of contributory negligence? Counsel refer to Code, section 1289, providing for fencing railways, and for recovery for live stock injured or killed, and for recovering for damages from fires set by railways. In this section the provision is that the railway company Under this provision it has been held that contributory negligence of an injured party was not a defense to an action for a violation of the provisions of the section. Spence v. Railway Co., 25 Iowa 139; Aylesworth v. Railway Co., 30 Iowa 459; Inman v. Railway Co., 60 Iowa 459, 15 N.W. 286; West v. Railroad Co., 77 Iowa 654, 35 N.W. 479, and 42 N.W. 512; Engle v. Railroad Co., 77 Iowa 661, 37 N.W. 6, and 42 N.W. 512. It will be observed that the language of section 1289 is not the same as in 1288. In the former section, the company is made liable in terms, absolutely, unless the injury was the result of the willful act of the owner.
The provision of section 1288 is: "Shall be liable for all damages...
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Ford v. Chi., R. I. & P. Ry. Co.
...91 Iowa 17959 N.W. 5FORDv.CHICAGO, R. I. & P. RY. CO.Supreme Court of Iowa.May 18, 1894 ... offered in evidence a time-table of the Chicago, Rock Island & Pacific Railway Company for lines east of the ... ...