Hall v. Chi., R. I. & P. Ry. Co.

• Citation: 84 Iowa 311,51 N.W. 150
• Parties: HALL v. CHICAGO, R. I. & P. RY. CO.
• Decision Date: 25 January 1892
• Court: United States State Supreme Court of Iowa

84 Iowa 311

51 N.W. 150

HALL

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

Supreme Court of Iowa.

Jan. 25, 1892.

Appeal from district court, Jefferson county; DELL STUART, Judge.

Action to recover damages for personal injuries alleged to have been caused by negligence on the part of defendant. There was a trial by jury, and a verdict and judgment in favor of plaintiff. The defendant appeals.Wilson & Hinkle, T. S. Wright, and Cummins & Wright, for appellant.

M. A. McCoid, for appellee.

ROBINSON, C. J.

In September, 1889, the plaintiff was in the employment of defendant as brakeman of a freight train. While attempting, in the line of his employment, to couple together certain cars, he was caught by a moving car, and so injured that he lost his right foot and a part of his left heel. The accident occurred at Washington, in this state. The train with which plaintiff was working had been separated into two parts. The forward part contained 10 or more cars, and its rear end was backed from the main track onto a side track for the purpose of taking out certain cars which stood on it. Each of the two cars which were to be coupled together had a coupling link, one of which had to be removed before the coupling could be made. The link in the stationary car was not removable, and plaintiff approached the other car to remove the link and set the pin to make the coupling, when the car backed against him, his foot was caught by a brakebeam, and he was thrown down, and, being unable to free himself in time to prevent it, received the injuries in question. Plaintiff in his original petition stated that when he observed that there was a link in each car, he signaled the engineer to stop, and, believing that the signal would be obeyed, he stepped in to remove the link, but the engineer did not obey the signal, and did not stop; that the defendant was negligent in not obeying any signal to stop, and in not stopping the train. Other grounds of negligence were also alleged, but need not be stated. The petition was verified by plaintiff. After the case was reached for trial, and during the trial, several amendments to the petition were filed. The third of these, in effect, alleged that, if the engineer stopped the train, he negligently, and without a signal so to do, started it back, thereby causing the injuries of which plaintiff complains. Near the close of the trial, plaintiff filed another amendment to his petition, in which he alleged that the conductor carelessly and negligently ordered the train back, and that in obedience to that order, which was made without the knowledge of plaintiff, and without any signal from him, while he was in a place of danger, the train was backed.

1. Appellee has filed a motion to strike from the files an amendment to the assignment of errors on the ground that it was filed too late to be considered. It is permissible to file such amendments, in the furtherance of justice. Stanley v. Barringer, 74 Iowa, 37, 36 N. W. Rep. 877. In this case it does not appear that the submission in this court has been delayed, nor that the appellee has been in any manner prejudiced, by the filing of the amendment. His motion is therefore overruled.

2. It was claimed by plaintiff on the trial, and his testimony tended to show, that, when he saw there was a link to be removed before the coupling could be made, he was standing on the main track, in sight of the engineer, and 8 or 10 feet from the side track, on which the cars were moving; that the engineer was looking at him when he gave the signal, and, when it was given, turned, as though to obey it, and that he thinks the signal was obeyed, and that the cars stopped; also, that, after the cars stopped, they were negligently started towards him by the engineer without a signal, or in response to a signal negligently given by the conductor. It was claimed by the defendant, and some of the evidence tended to show, that plaintiff gave no signal to the engineer, and was not where the engineer could have seen a signal, had he given one; that no signal to stop was given to the engineer until after the accident occurred, and that the train was not stopped until after that time; but that the conductor, seeing from his position on the main track what plaintiff was doing, and that he was not in sight of the engineer, gave the latter a signal to back slowly. For the purpose of proving his theory of the case, plaintiff called as a witness a man named Collins, who was rear brakeman of the train on which plaintiff was employed when the accident occurred, and was present at the time. Collins, however, testified, in effect, that Hall did not stand on the main track and give the engineer a signal to stop, but that he walked by the side of the car until he went in to change the link; that he did not see Hall give a signal until he went in to take out the link, and that while he was in there he gave the signal to back up; that the witness gave the signal to back up slowly just before Hall went in, but that while he was in to remove the link the witness gave no signal to the engineer to stop. The plaintiff then asked the witness if he did not state in writing as follows: “State of Iowa, Wapello Co. I, Albert Collins, being duly sworn, on oath say that I was brakeman on the train by which H. L. Hall was injured. I was on the ground near to him, and when he went in to fix the link, ready for coupling, I signaled the engineer to stop. If he had stopped when the signal was given, Hall would not have been hurt. He did not stop.” The witness at first denied that he had signed such a statement, but finally admitted that he had signed a paper for Hall. He was then asked if he did not tell Calvin McCoid, one of the attorneys for plaintiff, at a time and place named, that he had signed the paper, and would swear to what he had signed; and answered in the negative. He was then asked if he did not, in a conversation specified, state to one Wright that he had given the engineer a signal to stop while Hall was fixing the link; also, whether he did not tell Wright that Hall gave the signal to stop before he went in to the link, and that the witness gave another signal to stop after Hall went in,--and answered both questions in the negative. He was also asked if he did not sign a paper in the presence of Hall and others named, and whether he had not told Hall that he had given the engineer a signal to stop, and answered in the negative. Wright was then called as a witness, and permitted to testify that he...