Hiatt v. Des Moines, N. & W. Ry. Co.

• Decision Date: 23 October 1895
• Citation: 96 Iowa 169,64 N.W. 766
• Court: Iowa Supreme Court
• Parties: HIATT v. DES MOINES, N. & W. RY. CO.

96 Iowa 169

64 N.W. 766

HIATT

v.DES MOINES, N. & W. RY. CO.

Supreme Court of Iowa.

Oct. 23, 1895.

Appeal from district court, Greene county; George W. Paine, Judge.

Action at law to recover damages for a personal injury. Trial by jury. Verdict and judgment for the plaintiff. Defendant appeals. Reversed.Cummins & Wright, for appellant.

Cardell & Nichols, for appellee.

ROTHROCK, J.

1. The plaintiff was injured by falling between a moving train and a depot platform on defendant's railroad. At the time of the injury she was about five years old. The injury was received at a station named Waukee. The plaintiff and her father and mother and two younger children were passengers on a train which arrived at Waukee a little after 7 o'clock on the evening of February 18, 1893. The family were seated in the front part of the passenger coach in which they were traveling. When the train approached the station, and before it came to a stop, the father and mother of the plaintiff made preparations to leave the car, by vacating their seats. The conductor of the train preceded the family in going out of the car. The father of the plaintiff followed him, carrying one of the children and a satchel. The mother followed with the youngest child in her arms, and holding the hand of the plaintiff. The father went down on the depot platform, and when the mother came to the steps, or on the platform of the car, the conductor, who was then standing on the depot platform, with his lantern, for the purpose of assisting the passengers on and off the train, lifted the plaintiff from the car, and placed her on the depot platform. The plaintiff, instead of going towards the depot building, went the other way, and about the time the train started she fell between the depot platform and the car, and the wheels at the rear end of the car run over and cut off four of her toes. The original petition in the case was filed on the 2d day of September, 1893. The negligence therein charged was as follows: “That on said day the plaintiff went on board of one of the cars of the defendant's passenger trains with her parents, as a passenger thereon, and that upon the arrival of said train at the station of Waukee, and while she was still a passenger upon said train, and was, with her parents, proceeding to alight from said train upon the platform of said station, which station, depot, and platform the defendant had negligently, wrongfully, and carelessly failed and neglected to light in any manner, and before she had time to alight and reach a place of safety upon said platform, and while she was proceeding with due care and caution, the employés of the defendant operating and running said passenger train, which passenger train the defendant had failed and neglected to properly furnish with a sufficient number of competent employés to properly manage the same and the engine attached thereto, wrongfully and negligently started said train, and wrongfully, negligently, and unskillfully started said train and car from which plaintiff was proceeding to alight upon the platform of said station, with a sudden and violent jerk, and with such rapidity as to throw the plaintiff off her feet and on the ground off the platform on the rail of said track, with one foot upon the rail in such a manner that the wheels of the cars of said passenger train run over her said foot.” Afterwards the petition was amended by averring, in substance, that the conductor assumed the sole charge of the plaintiff in alighting from the car, and that he put her in an unsafe and dangerous place, and did not place her in charge of her parents, and abandoned plaintiff in said unsafe position, and negligently and without giving plaintiff time to get to her parents, or to a place of safety, suddenly gave the engineer a signal to start the train, and caused the train to be suddenly and violently started, and with such rapidity as to throw the plaintiff off her feet, and onto the ground, between the platform and the train. Afterwards the plaintiff again amended the petition at great length. We are unable to determine the object of this second amendment. It is in the main a repetition of the original petition and the first amendment, with the addition that on account of the confusion caused by the failure to light the platform the plaintiff was bewildered, and fell to the ground, and was injured. After the trial was commenced the plaintiff again amended her petition by striking from the petition and the amendments thereto the allegations charging the defendant with negligence in failing to have a sufficient and competent number of employés in charge of said train. The answer...