Gordon v. Chi., R. I. & P. R. Co.

• Decision Date: 20 December 1909
• Citation: 123 N.W. 762,146 Iowa 588
• Court: Iowa Supreme Court
• Parties: GORDON v. CHICAGO, R. I. & P. R. CO.

146 Iowa 588

123 N.W. 762

GORDON

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

Supreme Court of Iowa.

Dec. 20, 1909.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action at law to recover damages for personal injuries to plaintiff's intestate. At the close of the testimony, the court directed a verdict for the defendant, and, from the judgment entered thereon, plaintiff appeals. Reversed.William G. Clark, for appellant.

Carroll Wright and J. L. Parrish, for appellee.

WEAVER, J.

At the time of the accident, January 20, 1898, the defendant company was operating a line of railway in the then territory of Oklahoma, and plaintiff was there in its service as a locomotive fireman, when he claims to have been injured in the following manner: He alleges that as the freight train on which he was employed was approaching the station at Minco, about daylight in the morning, he went out upon the top of the tender in the discharge of his ordinary duty to assist in supplying the engine with water. At this time, and without his knowledge, the train had broken apart into two sections, and the rear section, not being under control, was following the other with the momentum acquired from a sharp downgrade over which they had passed, with the result that, as he was standing upon the tender, the detached section overtook and crashed with great violence into the section upon which he was engaged, throwing him to the ground beneath the wheels, and crushing and injuring his leg to such an extent as to require its amputation. This result he alleges was brought about by the negligence of the defendant in the construction and maintenance of its track; the same being rough and uneven and out of repair, thereby causing moving freight trains to be jolted, twisted, and wrenched apart, and by its negligence in failing by proper rule to regulate the speed of its trains over such track in a manner to guard against its known dangers. He further alleges that for a considerable distance in approaching Minco from the direction in which the train was moving there is a steep descending grade, which, before entering the yard, changes to an ascending grade, causing a depression or sag in passing over which car couplings were liable to be disconnected, by reason of all which said track was not constructed or maintained in a reasonably safe condition for the use of the employés operating trains thereon. Other charges of negligence are stated in the petition, but they do not appear to be involved in this appeal, and we shall not consider them. The answer puts in issue all the allegations of the petition, and pleads assumption of risk by the plaintiff. At the close of the testimony the defendant moved for a directed verdict in its favor on grounds which may be stated as follows: (1) There is no evidence of negligence on the part of defendant with respect to the construction or condition of its track. (2) There is no negligence shown on the part of defendant with respect to the couplers with which the train was equipped, and plaintiff had assumed the risk of their use by remaining in defendant's service. (3) There is no evidence of negligence on defendant's part in failing to regulate by appropriate rules the speed of its trains at the place of the injury and plaintiff had assumed the risk arising from such omission if any. (4) There is no proof of negligence by other employés of defendant causing the plaintiff's injury, and that under the laws of the territory where the injury occurred the negligence of a fellow servant gave plaintiff no right of action against his master. (5) There is no proof of negligence on defendant's part in the repair or maintenance of the track or that such negligence, if any, caused the injury complained of, and that plaintiff assumed the risk arising therefrom. (6) That the evidence as a whole will not sustain a finding in plaintiff's favor upon any theory of the case. This motion was sustained generally, and, verdict and judgment being entered accordingly, plaintiff appeals.

This cause was before us in Gordon v. Railroad Co., 129 Iowa, 747, 106 N. W. 177, where we reversed an order sustaining a demurrer to the petition which we found to state a good cause of action, and, so far as the decision there rendered is applicable to questions arising on this appeal, it must be regarded as decisive of the law. Before the cause came on for the second hearing, Gordon died, and his administratrix has been substituted as plaintiff.

1. Does the record present any evidence tending to show negligence by defendant in the construction or maintenance of its track? That the general rule which obligates a master to furnish his servant a reasonbly safe place to work applies to railway companies in the care and maintenance of their tracks and other places in and upon which their employés are required to perform service is too well established to require argument. Gordon v. Railroad, supra, and cases cited. Relevant to this issue, Gordon testified that the track was “bad”; “part of the grade was uphill and part downhill; it was awfully rough track”; “there were sags”; “the joints were up and down”; “where the track would be rough the cars would roll back and forth with a tendency to go off the track”; “such sags would have a tendency to break the cars in two--to uncouple them”; “I couldn't say how deep these sags were being in the engine. I only knew there was a great sag there. It was out of the line ordinary. I could state approximately they might have been six or eight inches deep”; “the worst depressions were on the level between the two grades.” No evidence was offered on the part of the defendant, and for the fact as to the condition of this track we have to rely solely on the statements of the plaintiff. We cannot say as a matter of law that this undisputed testimony has no tendency to sustain the allegation that the track was not maintained in a reasonably safe condition. On the contrary, if the jury found the witness entitled to credit and believed his statements,there seems to have been reasonable grounds on which to uphold a finding of negligence in this respect.

2. It is argued by appellee that, even if there was negligence on its part, it is not shown that defendant's injury was chargeable to such fault. Bearing upon this proposition, it is said that there is no sufficient evidence that the train was broken apart, or that plaintiff's injury was caused by the collision between the detached sections, or, if such evidence appears, it is circumstantial only, and not inconsistent with other reasonable theories not involving negligence by the company. The plaintiff, the only witness having personal knowledge of the accident (except the engineer, who neither affirms nor denies it, and probably was not at the moment in a position to see), testifies that, as the...