Hamilton v. Chi., B. & Q. Ry. Co.

• Decision Date: 14 January 1910
• Citation: 124 N.W. 363,145 Iowa 431
• Court: Iowa Supreme Court
• Parties: HAMILTON v. CHICAGO, B. & Q. RY. CO.

145 Iowa 431

124 N.W. 363

HAMILTON

v.CHICAGO, B. & Q. RY. CO.

Supreme Court of Iowa.

Jan. 14, 1910.

Appeal from District Court, Dubuque County; M. C. Matthews, Judge.

Action at law to recover damages for personal injuries received by plaintiff, resulting from his being struck by an engine on one of defendant's tracks in the city of Dubuque. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Affirmed.Woodward & Lees and J. W. Kintzinger, for appellant.

D. E. Maguire and T. J. Fitzpatrick, for appellee.

DEEMER, C. J.

Defendant maintains a switchyard in the city of Dubuque, upon which there are three tracks running lengthwise thereof. These tracks run in an easterly direction, branching off from defendant's main line, which runs substantially north and south. The northerly switch track is called the house track, and just north of this track was the defendant's freight depot. Cars were set in upon the house track to be loaded and unloaded into and from the freighthouse. South of the south switch is what is known as the Dubuque Boat Works. In order that travelers might reach these works and other industries south of the yards defendant had constructed a plank crossing across the three switch tracks, which crossing was from 15 to 25 feet west of the west end of the freighthouse. This crossing was made of planks 3 inches or more in thickness and 16 feet long, laid lengthwise and parallel with the rails of the tracks. The planks were laid upon the railway ties, and the west ends thereof were sawed square across, so that when put in place the tops were about 3 1/2 inches above the surface of the ties. The ends were not beveled off, and at some places they were warped so that they were more than 4 inches above the surface of the ground. There was no filling of dirt, cinders, or other material at the west end of the planks. The crossing had been in this condition for a considerable length of time.

On November 26, 1906, plaintiff was employed by defendant as a night switchman to work in its Dubuque yards. His hours were from 6:30 or 7 p. m. until 5 or 6 a. m. His duties were to couple and uncouple cars, and to see that they were transferred and distributed to the proper tracks. In the performance of his duties he was compelled to get on and off moving engines. The engine with which he generally worked was equipped as a switch engine, with a headlight and a foot or running board at either end. Prior to December 10, 1906, plaintiff says that he had no knowledge of the construction of the crossing at the place in question, and did not know that the boards were unbeveled, or that they stuck up, as heretofore indicated. The night of December 10th was dark, and on that night he was ordered to go down on the house track with the switch engine and get a car which was to be taken out and sent to East Dubuque in Illinois. This car was a little east of the crossing in question. Pursuant to orders, the switch engine backed out to the house track, and plaintiff got upon the rear footboard. When he reached what he thought was a proper place, plaintiff gave the engineer a slow signal. The engineer responded, and slowed the engine down until it was running at the speed of about 1 1/2 or 2 miles per hour. When at a point perhaps 1 1/2 or 2 feet from the west end of the planks making the crossing, plaintiff attempted to get off the footboard of the engine to go ahead to see if the couplers were properly arranged on both the engine and the car just ahead, so that a coupling would be affected, and as he stepped off his toe struck and caught against the west end of one of the crossing planks, and before he could extricate himself, one foot was caught by the footboard of the engine, throwing him violently forward. He then hallooed to the engineer to stop, but before he did so plaintiff's other foot was caught, and he received the injuries of which he complains. After plaintiff hallooed the engine ran about 2 feet. Plaintiff stepped off the footboard directly in front of the moving engine, and he claims that this was the usual, common, and customary method of doing the work, both in the defendant's yards and in the yards of other railway companies. The testimony also shows that the customary method of putting in crossings such as the one complained of is to bevel off and taper the ends of the planks. There was testimony tending to show that the headlight on the switch engine did not throw any light on the track within a distance of from 40 to 50 feet from the engine. This is a statement of the case largely from plaintiff's standpoint, and the negligence charged is the faulty construction of the crossing and the fact that the ends of the planks were not beveled or tapered off, and that there was no filling in at the ends of the plank. Defendant denies any negligence on its part, pleaded contributory negligence, and assumption of the risk by plaintiff, and also pleaded that he was a member of defendant's relief department, and, after receiving his injuries, claimed and accepted the benefits promised him, thus relieving defendant from further responsibility. Stated in another form, this last plea is what defendant calls an accord and satisfaction. The trial resulted in a judgment for plaintiff in the sum of $1,000. Many points are relied upon for a reversal of the judgment, to the more important of which we shall direct our attention.

A railway company is bound to use ordinary and reasonable care in keeping and maintaining its switchyards and depot grounds in a reasonably safe condition for its employés who are required to pass over and use the same in the progress of their work. Thus it has been held negligent in failing to fill in the spaces between ties. Tibbitts v. Railroad, 138 Iowa, 178, 115 N. W. 1021; R. R. Co. v. Robbins, 57 Ark. 377, 21 S. W. 886;Fish v. R. R. Co., 96 Iowa, 702, 65 N. W. 995; Railway Company v. Cozby, 174 Ill. 109, 50 N. E. 1011; Balt. Co. v. Clifford, 99 Ill. App. 381;Roenfranz v. Railroad (Iowa) 116 N. W. 714. It has also been held liable for dangerous accumulations of snow and ice (Sankey v. Railroad, 118 Iowa, 39, 91 N. W. 820), and for defective cattle guards (Ford v. Railroad, 91 Iowa, 179, 59 N. W. 5, 24 L. R. A. 657), also for dangerous obstructions in its yards, as a bar of iron (R. R. Co. v. Jackson, 106 Tenn. 438, 61 S. W. 771); an oil box (R. R. Co. v. Bouldin, 121 Ala. 197, 25 South. 903); a ditch from 4 to 6 inches deep across the track (Hollenbeck v. Railroad, 141 Mo. 97, 38 S. W. 723, 41 S. W. 887); a pile of gravel (Hurst v. R. R. Co., 163 Mo. 309, 63 S. W. 695, 85 Am. St. Rep. 539); a dangerous platform used for weighing cars (Rome R. R. v. Thompson, 101 Ga. 26, 28 S. E. 429). See, also, Chittick v. Railroad, 88 Minn. 11, 92 N. W. 462;Gillespie v. Railroad, 150 Mich. 303, 113 N. W. 1116. We are constrained to hold that a jury was justified in finding defendant negligent in constructing and maintaining the crossing in the manner shown by the evidence.

2. Assuming that defendant was negligent in constructing and maintaining the crossing as it did, the risk incident to the use thereof was not an ordinary one which plaintiff is held to have assumed in the doing of his work as a switchman. He might, of course, have assumed the risk incident to the use of the defective crossing had it been shown that he knew of the defect and of the dangers incident to working thereover, and continued in defendant's employ without protest and promise of repair. But the testimony is not such as to justify us in holding, as a matter of law, that he had this notice or knowledge. The question was for the jury under proper instructions; and, as no complaint is made of the ones covering this subject, we cannot interfere.

3. Plaintiff stepped off ahead of the moving engine between the rails, and, as he said, almost instantly caught his toe and fell, receiving the injuries of which he complains. In order to meet the charge of contributory negligence he was permitted to show, over defendant's objections, that it was customary to get on and off the front of an engine between the rails in railroad yards of the size of these of defendant in Dubuque. Complaint is made of the introduction of this testimony, and it is also argued that in stepping off the moving car between the rails in the manner shown in this case plaintiff was guilty of contributory negligence as a matter of law, and that the jury should have been so instructed. Nothing is much more unsettled than the admissibility of testimony as to the usual and customary method of doing things where negligence or contributory negligence is involved. It is practically the universal rule that custom or usage will not justify a negligent act. And it is generally held that evidence as to custom is inadmissible to show negligence. See Eppendorf v. R. R. Co., 69 N. Y. 195, 25 Am. Rep. 171;Thompson v. Railroad, 153 Mass. 391, 26 N. E. 1070;Cleveland Co. v. Newell, 75 Ind. 542;Peoria Co. v. Clayberg, 107 Ill. 644. But the absence of the usual and customary precautions may sometimes be shown as bearing upon the issue of negligence or contributory negligence. See McGrath v. Railroad, 63 N. Y. 522;Coates v. Railroad, 62 Iowa, 486, 17 N. W. 760;McKean v. Railroad, 55 Iowa, 192, 7 N. W. 505. Our rule seems to be that if the act done is not negligent per se--that is to say, if the act is not so obviously dangerous as to constitute negligence as a matter of law--testimony as to the usual and customary method of doing the act is admissible. Jeffrey v. R. R. Co., 56 Iowa, 548, 9 N. W. 884;Whitsett v. R. R. Co., 67 Iowa, 150, 25 N. W. 104;Miller v. Railroad, 89 Iowa, 571, 57 N. W. 418.

In the latter case it is said: “The plaintiff introduced a witness who testified that it was usual and customary for brakemen, in going over the tender, to step on the lid of the manhole. We do not understand counsel to object to this line of evidence. It was surely proper...