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

• Decision Date: 10 February 1905
• Citation: 102 N.W. 422,127 Iowa 84
• Parties: FOSTER v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

127 Iowa 84

102 N.W. 422

FOSTER

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

Supreme Court of Iowa.

Feb. 10, 1905.

Appeal from District Court, Cass County; N. W. Macy, Judge.

Action for damages. Verdict was directed for defendant, and from judgment thereon the plaintiff appeals. Reversed.H. M. Boorman and Willard & Willard, for appellant.

Carroll Wright, John I. Dillie, and J. B. Rockafellow, for appellee.

LADD, J.

The plaintiff was a section hand employed at Wiota. On the morning in question he and nine others, including the foreman, boarded a hand car, on which the tools ordinarily used by the men, together with their dinner pails, a water cask, and some plank, had been placed. They were going to work some five miles east of town. The plank had been placed on the north side of the car, and on the front end of it two men sat, and one man on the back end. Three men were at the back handle of the propelling lever, facing the east. One man stood at the north side, and another at the south side, between the front and back handles, facing the east. Two men stood before the front handle, with their backs towards the east; the one to the north being the plaintiff. The four in front were somewhat crowded, so that the plaintiff took hold of the handle with his right hand only, and stood with his face turned somewhat to the south. After going about a mile eastward he turned his head back of the man next to the south to blow his nose, and just as he did so the car made a lurch to the north, and threw him out of balance, so that he lost his handhold, and jumped backwards in front of the moving car. After staggering some distance, he was struck by it on the leg, which was broken, thrown to the ground, and run over. The evidence was not such as to indicate any improper loading of the car, and the charge of neglect in this respect was not made out. It appears that the wheels on the hand car were eight or ten inches apart on each side, and were fastened to the axle, and it turned in the boxing below the frame, rather than the wheels on the axle. A cogwheel in the center turns the axle, and is worked by the propelling lever. One wheel was loose on the axle, and the axle had a play of two or three inches in the boxing; and, because of this, the car oscillated or swayed back and forth on the track. This the plaintiff well knew a long time before the accident, and, as he had made no complaint, must be held to have assumed the risk incident thereto. To the suggestion that he may not have comprehended the danger, it is enough to say that he had equal, if not a better, opportunity for judging than the defendant. Bryce v. Ry., 103 Iowa, 665, 72 N. W. 780;Box v. Ry., 107 Iowa, 660, 78 N. W. 694;Branco v. Ry. (Iowa) 93 N. W. 97. He is not in a situation to complain of any defect in the car which may have caused him to leave it.

If the defendant is blamable at all, it is because of the failure of its foreman to stop the car in time to have avoided the injury. The latter was warned to stop the instant plaintiff lost his hold, and at once stepped on the brake, and did his utmost to bring the car to a standstill. The brake consists of two wooden shoes hung on bolts next to the wheels. There is a center bar, with a square piece or plate on top for the foot, and two levers extending from this to the bottoms of the shoes. By stepping on the center bar or plate, these shoes are pressed outward against the wheels. The shoes are covered with leather or rubber. The evidence tended to show that this leather or rubber had become so worn that it was inefficient in stopping the car. This condition had been called to the attention of the foreman by the plaintiff a day or two previous to the accident, and the latter had promised to repair it. On reliance upon this, plaintiff continued in employment.

The plaintiff testified that he did not know how far he sprang back, but that he struck the ground on both feet, facing the car, and that he staggered back 8 or 10 feet before it struck him. In his words: “It either rolled me along or shoved me along on the ties under the car. I remember being dragged along on the ties under the car. I could not tell how far. Probably the length of a rail--thirty feet. One wheel of the car ran over my head and broke my jaw. The cogwheel caught me and turned me around under the car.” Other witnesses estimated that the car, after striking him, went from 12 to 20 feet. The speed of the car was variously estimated at from 2 1/2 to 6 miles an hour. The distance within which a car loaded as this was, with brakes in good repair, and under like conditions, could be stopped by a man of the weight of the foreman, was estimated by two witnesses at 2 to 4 feet, when going from 2 1/2 to 3 miles per hour, and at 4 to 6 feet when moving at 6 miles an hour, while another fixed the space at 12 or 14 feet when moving at the latter speed, and one-third as far when at the former. The jury might have found that, had the brake been in repair, the foreman might and probably would have stopped the car in time to have avoided the injury.

2. It cannot be held, as a matter of law, that plaintiff was guilty of contributory negligence. He could not well have kept both hands on the hand bar, as then his left elbow would have interfered with his neighbor. Of necessity, he stood sidewise, and had merely turned his head to blow his nose when he lost his balance. Whether, in view of the condition of the axle and brakes, he failed to exercise reasonable care for his safety was an open question.

3. Nor do we think he should be held to have assumed the risk incident to the defective brake shoes. He testified that one or two evenings previous to the accident he had...