Haynes v. Ft. Dodge & Omaha Railroad Co.
| Decision Date | 29 October 1902 |
| Citation | 92 N.W. 57,118 Iowa 393 |
| Parties | GEORGE A. HAYNES, Administrator of the estate of Hermon Smith, Deceased, Appellant, v. THE FORT DODGE & OMAHA RAILROAD COMPANY |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. N.W. MACY, Judge.
ACTION for damages. From judgment dismissing his petition, the plaintiff appeals.
Affirmed.
A. D Early and S. B. Wadsworth for appellant.
John F Duncombe and Harl & McCabe (J. M. Dickinson, of counsel) for appellee.
The defendant had laid the ties and rails on its road to the south of Logan, but this had not been leveled or ballasted. Its construction train consisted of thirteen flat cars, used for hauling dirt, and two box cars,--one for tools, and the other for the crew. One box car was immediately in front of the engine, and in front of that, the flat cars. The other box car was behind it. The men had been picked up, as usual at several points along the track, and were being taken to Logan for dinner. They were scattered along the flat cars in various positions, while the deceased, with one Bowe, sat at the front end of the front flat car, with his feet hanging over. When about three miles out of Logan, the engineer stopped the train to take on the surveyors. In doing so, the jerk occasioned by the sudden taking up of the slack between the pushed cars threw the deceased forward to the ground, and he was run over and killed. No signal of an intention to stop the train was given. Its speed is variously estimated at from 8 to 35 miles an hour. The only ground of negligence charged was: "That while the train was being run over the rough road at a high rate of speed, the brakes were suddenly put on said train, giving the train such a sudden check in speed that the said Hermon Smith was thrown from the flat car without any fault or negligence of his." The district court reached the conclusion that the deceased was negligent in sitting where he did, and directed a verdict for the defendant. In this we concur. The danger of such a situation was perfectly obvious. Every one who has given the matter the slightest attention knows that in starting and stopping freight trains jerking and jarring is inevitable and especially so in the absence of air brakes, as in this case. Couplings of the flat cars were loose when being pushed; but, the moment the engine was checked or stopped, the momentum of the cars carried them forward, so as to take up the slack. It would not require a very sudden stop to occasion a considerable jerk at the end of thirteenth car, and this was precisely what might reasonably be apprehended every time the train was brought to a standstill. How much of a jerk or how sudden a stop would be required to throw one sitting as deceased did off his balance would depend largely upon the attention given by himself for his own preservation. But one stake was at the end of the car, and by seizing that Bowe avoided falling. No one observed deceased holding to the stake, though several saw him go over. It cannot be said that he was doing anything to protect himself from the jerking of the cars, inevitable in stopping the train, which he knew was likely to occur several times on the way in order to take aboard laborers. And yet he was where every attempt of the engine to bring the train to a standstill tended to throw him from his balance and hurl him to the ground in...
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