Gould v. Chi., B. & Q. R. Co.
| Decision Date | 22 July 1885 |
| Citation | 24 N.W. 227,66 Iowa 590 |
| Parties | GOULD, ADM'R, v. CHICAGO, B. & Q. R. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Des Moines circuit court.
Action to recover the damages sustained by the estate of which plaintiff is the administrator, resulting from the death of an intestate, caused, as it is alleged, by the carelessness of defendant and its employes. At the time of intestate's death he was in the employment of defendant as an engineer, operating a locomotive running upon defendant's road. The injuries resulting in his death were received while engaged in such employment. There was a judgment upon a verdict for plaintiff. Defendant appeals.H. H. Trimble, J. W. Blythe, and Thomas Hedge, Jr., for appellant, Chicago, B. & Q. R. Co.
Poor & Baldwin, for appellee, Frank W. Gould.
1. The intestate, at the time of his death, was the engineer in charge of an engine drawing a freight train between Burlington and Ottumwa. He was instructed to make the trip without stopping at any station unless signaled or specially directed. It appears that it was the duty of the conductor or brakeman of the rear end of the train, when passing stations, to make signals to the engineers. The train having reached Leffer, and the engine and many cars having passed the station-house, the intestate, after making inquiry of the fireman in regard to the expected signal, which, it appears, was not given, went to the side of the engine usually occupied by the fireman, and leaned out of the “gangway,” looking back for the expected signal. He was almost instantly struck upon the head by a “water-crane” or “water-column,” causing an injury which soon resulted in death. The water-crane, or the frame supporting it, was about two feet from the floor of the gangway upon which intestate was standing when he received the injury.
2. The circuit court gave to the jury the following instruction: “(10) If you find from the evidence that it was the duty of the conductor to give, or cause to be given, a signal to the engineer about the time the car passed Leffer's station, and that the conductor negligently failed to give, or have the usual signal given, then the defendants were guilty of negligence.” We think the instruction ought not to have been given. The failure of the conductor to give the signal was undoubtedly negligence; but it is plain that it was not the proximate cause of the injury. Indeed, the failure to give the signal did not cause the intestate to expose himself to the danger of the water-crane by looking for the signal. He acted as he did for the purpose of discovering the signal, and had it been given, he would, notwithstanding, have met with the accident. The failure to make the signal did not require him to expose himself to danger. It was his duty to look for it, whether it was given or was not given, and the...
To continue reading
Request your trial