Girl v. U.S. R.R. Admin.

• Decision Date: 26 September 1922
• Docket Number: No. 34549.,34549.
• Citation: 194 Iowa 1382,189 N.W. 834
• Parties: GIRL v. UNITED STATES RAILROAD ADMINISTRATION ET AL.
• Court: Iowa Supreme Court

194 Iowa 1382

189 N.W. 834

GIRL

v.UNITED STATES RAILROAD ADMINISTRATION ET AL.

No. 34549.

Supreme Court of Iowa.

Sept. 26, 1922.

Appeal from District Court, Scott County; D. V. Jackson, Judge.

Action by plaintiff, as administratrix of the estate of Frank B. Girl, deceased, under the federal Employers' Liability Act, to recover damages predicated on the death of said decedent while employed by the United States Railroad Administration. Cause tried to a jury, resulting in a verdict of $7,000. Defendants appeal. Affirmed.Cook & Balluff, of Davenport, and J. G. Gamble and R. L. Read, both of Des Moines, for appellants.

Wm. W. Scott and Realff Ottesen, both of Davenport, for appellee.

DE GRAFF, J.

[1][2] This action arises under the provisions of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). The facts presented by the record warranted the jury in finding that the defendant was negligent, and also that the plaintiff's decedent was guilty of contributory negligence. Under the federal law, if an act of negligence on the part of the defendant is established, and it is also shown that there was some negligence on the part of the decedent employee proximately contributing to his death, the negligence of the latter is not an absolute defense, but will mitigate the damages. Bennett v. A., T. & S. F. R. Co., 191 Iowa, 1333, 183 N. W. 424. It is a comparative defense, and not a defense in bar. C., R. I. & P. Ry. Co. v. Ward (Okl. Sup.) 173 Pac. 212. However, it is not the purpose of the federal act to afford relief, where the injury and resulting damages are due solely to the decedent's negligent conduct. Virginian Ry. Co. v. Linkous, 230 Fed. 88, 144 C. C. A. 386;Great Nor. Ry. Co. v. Wiles, 240 U. S. 444, 36 Sup. Ct. 406, 60 L. Ed. 732.

The deceased was an employee of the Rock Island Railroad as a telegraph operator for a number of years prior to his death, and after the railroad was taken over by the United States Railroad Administration he continued his work in its employment. At the time of his death he was 51 years old. He worked at a small telegraph station or shanty in Davenport, Iowa, on the right of way west of Taylor street, and a little south of the double tracks of the railroad. Taylor street runs north and south; the tracks, east and west. The tracks cross the street at grade. The north track is the west-bound, and the south track is the east-bound. About one quarter of a mile west of Taylor street is a semaphore which controls east-bound trains. This signal is operated from the shanty where the decedent worked, and it is the rule of the company that all east-bound trains must stop at the semaphore and wait until the operator at Taylor street signals the train to proceed by “opening the block.” The semaphore is visible from the shanty.

One of the duties of the operator at Taylor street is to receive from the west-bound freight trains a consist or report of the contents of the train. Sometimes the conductor would hand the report to the operator, and at other times he would attach it to heavier object and throw it from the train. This shanty is a few feet south of the south rail of the east-bound track, and right up against the sidewalk on the west side of Taylor street. It has windows on the west side, through which it is possible to see trains as they approach from the west for a distance of about one-quarter of a mile. The shanty door opens to the north.

On the morning of the accident the decedent was attending to his duties in the shanty. A regularly scheduled east-bound train came east as far as the semaphore and stopped. Girl gave the customary signal by means of a lever which moved the semaphore. The engineer on the train gave two sharp blasts of the whistle, which indicated he was about to start east, and the train did start east. Shortly after the signal was given to the eastbound train, a west-bound freight train appeared east of Taylor street. As the caboose of the west-bound train approached Taylor street, the decedent stepped out of the door of the shanty onto the east-bound track, and was hit by the east-bound engine. The injuries received caused his death.

Girl evidently left the shanty, intending to receive the consist from the conductor of the west-bound train. He had proceeded north and “a little bit toward the east,” and about half way across the track, when struck. Witness Reed testified:

“When he was struck, Girl had got out on the track about where the sidewalk is on the west side of Taylor street.”

The negligence charged by plaintiff against the defendant is that the train was running at a high and excessive rate of speed, and at a rate in excess of 12 miles an hour, contrary to the ordinance of the city of Davenport. The material provision of the ordinance reads:

“No such company or person shall permit or allow any engine or car to be run or moved on any road or railroad track within the limits of said city at a greater rate of speed than twelve miles per hour; provided however, that upon any track or tracks of a railway company where the same does not cross any public street or avenue at grade, the rate of speed named in this ordinance does not apply.”

It is the contention of appellant that the trial court erred in admitting the ordinance over the objection of appellant, for the reason that--

“There is no limit as to the rate of speed permitted trains, except where...