Henry v. Sioux City & P.R. Co.
| Decision Date | 07 September 1888 |
| Citation | 39 N.W. 193,75 Iowa 84 |
| Parties | HENRY v. SIOUX CITY & PACIFIC RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Decided May, 1888
Appeal from Cherokee District Court.--HON. SCOTT M. LADD, Judge.
ACTION for the recovery of damages for a personal injury sustained by plaintiff while in defendant's employ as a brakeman on one of its trains. The injury is alleged to have been caused by the negligence of defendant and its employes in the management of the train. There was a verdict and judgment for plaintiff and defendant appeals.
AFFIRMED.
Joy Wright & Hudson and John R. Hawley, for appellant.
E. C Herrick and E. F. Gray, for appellee.
This cause has twice been in this court before the present appeal. See 66 Iowa 52, and 70 Iowa 233. The accident occurred while plaintiff was making a coupling. A number of cars were moved from the main track to a side-track, by the operation known as "kicking in." Plaintiff, who was the only brakeman on the train, removed the pin which coupled the cars to the engine, and gave the signal to the engine to back, and, when the cars were run onto the side-track, he went on top of one of them, and proceeded to the rear end of the last car, where he descended to the ground, and ran to a standing car, for the purpose of coupling it to the others. He succeeded in making the coupling, but was struck by the moving cars and thrown to the ground, and the trucks passed over one of his feet, inflicting a serious and permanent injury. His claim is that he made the coupling in obedience to a direction of the conductor, who was his superior, and whose orders he was required to obey; that it was the custom in the performance of such work for the conductor, when there was but one brakeman on the train, to go upon the moving cars, and by applying the brakes reduce their speed so that the coupling could be made with safety; and that when the conductor gave him the order to make the coupling in question he indicated by his actions that he would follow him onto the cars for that purpose, but that he neglected to do so, and that the injury was in consequence of that neglect. He also claims that when he started to make the coupling he believed that the conductor would perform that duty, and that, when he went between the cars, he did not know that it had not been performed, or that the speed of the cars had not been reduced.
I. It was insisted in the argument that the evidence shows conclusively that the plaintiff was guilty of such negligence contributing to the injury as defeats all right of recovery. Plaintiff testified that when he went upon the cars they were moving at a rate of from four to five miles per hour, and the jury found specially that they were moving at four and one-half miles. He also testified that when he reached the top of the car, and got upon his feet, the conductor was by the side of the car, with his hand on the ladder, and was apparently about to follow him, and that it had been the uniform custom during the time he had worked upon that train which was ten days, for the conductor to go upon the cars under like circumstances, and apply the brakes. Also that he did not notice when he descended from the cars that the conductor had not gone upon them; and that from the time he reached the ground until he was struck and thrown down, his attention was given to the matter of the coupling; and that he did not notice that the speed of the cars had not been reduced. If these are the facts of the occurrence, it cannot be said, as matter of law, that plaintiff was guilty of contributory negligence: but the question whether he was so guilty is in the nature of an ultimate conclusion to be determined from the facts, and it was the province of the jury to determine it. It is true that by a glance to the rear when he was about to descend from the cars he could have seen that the conductor had not gone on top of them, and that, if he had noticed the cars as they approached him, he might have seen that their speed had not been reduced; but if it was the duty of the conductor to go upon the cars and apply the brakes, and he had been led by his conduct to believe that he was about to perform that duty, he was not necessarily negligent because he proceeded to do the work assigned to him, without first ascertaining whether he had performed it. Beems v. Chicago, R. I. & P. Ry. Co., 58 Iowa 150, 12 N.W. 222. The facts as testified by plaintiff do not bring...
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