Gorham v. Sioux City Stock Yards Co.
| Decision Date | 20 December 1902 |
| Citation | 92 N.W. 698,118 Iowa 749 |
| Parties | GEORGE F. GORHAM v. SIOUX CITY STOCK YARDS COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--HON. JOHN F OLIVER, Judge.
ACTION for damages for personal injury. Verdict and judgment for the plaintiff. The defendant appeals.
Affirmed.
Shull & Farnsworth for appellant.
C. A Irwin for appellee.
The plaintiff was a brakeman on the defendant's train in its yard at Sioux City, and while on duty he was thrown from the ladder of a box car by coming in contact with a post placed by the defendant near its track. The plaintiff was familiar with the yard and tracks, and knew that the defendant was preparing to erect a stock chute across them by digging post holes at different points near the tracks. He did not know however, that the posts were to be placed so near any of the tracks as to be come dangerous to those whose duty it was at times to pass up and down the ladders on the sides of cars. The post with which he collided was about eight inches square, seven or eight feet high, and stood about three feet and eight inches from the rail. It was set at about five o'clock in the afternoon of the 20th of December, and at half past six o'clock of the same evening the plaintiff was injured. The evidence tends to show that an ordinary box car extends over the side of the rail some twenty-seven inches, and that a post within four feet of the rail was dangerous. Shortly before the accident, the plaintiff passed this post standing on the footboard of an engine, and was then some ten feet from the post. It was very dark, and as the enigne was moving through the yard the plaintiff was on the lookout for obstructions on the track and did not notice the nearness of the post to the track. It is argued that because the plaintiff saw, or might have seen, this post at the only time he passed it after it was set, he assumed the risk of its being there, and was also guilty of contributory negligence in getting down the side of the car at that point. It was no part of the plaintiff's duty to oversee the setting of this post, or to go to it at once after it was set to ascertain whether it was in dangerous proximity to the track. He had the right to assume that it would be placed at a safe distance from passing cars. Blazenic v. Coal Co., 102 Iowa 706, 72 N.W. 292. The questions, therefore, of negligence, contributory negligence, and assumption of risk were for the jury under the well settled holdings of this court.
II. There was no error in refusing a new trial on account of the misconduct of one of the jurors. The evidence before the court on the question of his intoxication fully justified the ruling. The admission of the juror that he took a dose of quinine and whisky for a severe cold would not alone justify the setting aside of the verdict. State v. Morphy 33...
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