Haden v. Sioux City & P. R. Co.

• Decision Date: 19 May 1891
• Citation: 99 Iowa 735,48 N.W. 733
• Court: Iowa Supreme Court
• Parties: HADEN v. SIOUX CITY & P. R. CO.

99 Iowa 735

48 N.W. 733

HADEN

v.SIOUX CITY & P. R. CO.

Supreme Court of Iowa.

May 19, 1891.

Appeal from district court, Harrison county; C. H. LEWIS, Judge.

Action to recover for personal injuries, received by being run over by moving cars, operated by defendant, while in the employ of defendant as section foreman, because of defendant's employes negligently cutting or permitting a train to break in two parts, and neglecting to stop the detached cars, or to give any proper warning to plaintiff of their approach. The defendant answered, admitting its corporate capacity and plaintiff's employment as section foreman, and denying all other allegations, and alleging contributory negligence. The case was tried to a jury, and a verdict in favor of plaintiff for $2,650, and certain special findings, returned. Defendant's motion for new trial being overruled, judgment was entered upon the verdict. Defendant appeals.John B. Hawley and J. W. Barnhart, for appellant.

S. H. Cochran, for appellee.

GIVEN, J.

1. After the jury was impaneled defendant objected to the introduction of any evidence, for the reason that the petition failed to state a cause of action, which objection was overruled, and the ruling is assigned as error. It is urged in support of the objection that plaintiff's employment as section foreman was in no way connected with the operation of trains, and not within section 1307 of the Code. If this be correct, “then the facts stated in the petition do not entitle the plaintiff to the relief demanded,” and were grounds for demurrer. Code, § 2648. Code, § 2650, is as follows: “When any of the matters enumerated as grounds of demurrer do not appear on the face of the petition, the objection may be taken by answer. If no such objection is taken it shall be deemed waived. If the facts stated by the petition do not entitle the plaintiff to any relief whatever, advantage may be taken of it by motion in arrest of judgment, before judgment is entered.” The defendant neither demurred nor moved in arrest of judgment on this ground, and therefore must be held to have waived the objection. Linden v. Green, 46 N. W. Rep. 1108, (October term, 1890,) and cases cited.

2. Plaintiff offered the Carlisle tables, contained in the Encyclopedia Brittanica, to which defendant objected because no sufficient foundation had been laid, and now complains of the overruling of that objection. In Worden v. Railway Co., 76 Iowa, 314, 41 N. W. Rep. 26, this same work was held to be admissible without preliminary proofs under section 3653 of the Code. In Gorman v. Railway Co., (Iowa,) 43 N. W. Rep. 303, cited by appellant, a different work was offered after preliminary proofs had been made, which this court held to be sufficient. There was no error in overruling the objection.

3. Other errors assigned and discussed involve a consideration of the facts about which there is but little conflict, and which are substantially as follows: The defendant's track runs north and south through the incorporated town of Mondamin, trains from the south being in full view for one mile. There was a watertank north of the depot, and one or more side tracks that connected with the main track at points north and south of the station-house. It had been the practice in approaching that station with freight trains, when cars were to be left or water taken, to cut the train in two while approaching the station, and run the engine and cars attached past the station to the switch or tank beyond, and set out cars or take water, while the other cars, in charge of a brakeman, followed to and were stopped at the station for the discharge of passengers and freight. There is some conflict as to how frequently this had been done, but all agree that it had been done a number of times, especially by the train going north in the forenoon. Several witnesses testify that this is a common practice on railroads, and was frequently done at that station. The train under notice had uniformly carried a cupola caboose in the rear of the freight-cars, and at and for a month before the accident had carried a passenger-car in rear of that. At the time of the accident, and for a number of years before, plaintiff was in defendant's employ as a section foreman, and had charge of a section from a point south of and through the town to a point north of it. He resided near to and in full view of the tracks at the station, and was frequently there when this train passed. On July 10, 1889, he and his men were at work at and near the switch stand south of the depot between 10 and 11 A. M., when this train approached from the south. Plaintiff was engaged in making some repair on the switch at the point of connection with the main track, which required him to go upon the main track. Some distance south of the south switch a brakeman, knowing that there were cars to set out and passengers and freight to discharge, cut the train in two without any immediate order to do so, leaving nine freight-cars attached to the engine and five loaded freight-cars, the caboose, and passenger-car to follow. Plaintiff saw the train approaching when about one mile away, and, as the engine and cars attached approached the switch where he was at work, he and the other men on the track stepped off. Immediately after the engine and cars attached to it had passed, the plaintiff, without looking south, stepped upon the track with his face from the south, and was examining the track, when he was struck by the advance car of the rear section of the train and injured. There are some unimportant differences in the statements of witnesses as to the precise movements of plaintiff after he stepped upon the track, but all agree that h...