Horn v. Chicago, M. & St. P.R. Co.

• Decision Date: 08 June 1904
• Citation: 99 N.W. 1068,124 Iowa 281
• Parties: JEFFERSON HORN, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Court: Iowa Supreme Court

99 N.W. 1068

124 Iowa 281

JEFFERSON HORN, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

June 8, 1904

Appeal from Wapello District Court.--HON. ROBERT SLOAN, Judge.

ACTION at law to recover damages for the death of William Horn plaintiff's minor son, due as is alleged, to defendant's negligence. Trial to a jury, directed verdict for defendant, and plaintiff appeals.

Affirmed.

W. W Rankin, W. W. Cory, and J. W. Porter, for appellant.

Jaques & Jaques, J. C. Cook, and H. Loomis, for appellee.

OPINION

DEEMER, J.

Plaintiff 's minor son, William Horn, a boy ten years of age, was run over by a train on defendant's line of road, and received injuries which resulted in his death. The grounds of negligence are that defendant's car repairer invited him into the yards of the company to assist him in pushing a car and that after leaving this work he jumped upon a moving train, and was caused to fall therefrom by the engineer, who carelessly threw on full steam and caused the cars to jerk, whereby the boy was shaken from the train and thrown under the cars, receiving injuries from which he afterward died.

The evidence establishes, beyond all controversy, that defendant's car repairer invited plaintiff's son to go into the yards of the company to assist him in moving a small repairer's car; that he accepted the invitation, participated in the movement of the car, threw a switch so that the car might go onto a side track to avoid a passing train, and otherwise assisted the employe about his work. After leaving the switch, which had been thrown by one of the boys, the car repairer paid no more attention to them, and did not know where they had gone until from half an hour to an hour afterward, when he heard that the Horn boy had been killed. It seems that after leaving the car repairer the boys jumped onto cars which were being moved by a switch engine, and rode for a short distance. They then passed on down to a highway crossing, where they stopped until the same or another switch engine came up with some cars, and stopped near where they were standing. As the engine started up to do some switching, plaintiff's son jumped upon one of the cars; taking hold of the iron handhold or ladder on the car, and putting his feet, or one of them, upon an oil box on the truck of the car. While in that position he rode about the length of one railway iron, and, the engine giving a jerk, he lost his hold and fell under the wheels of one of the cars. The evidence shows that he gave no indication of his intention to jump upon the car until it was close upon him, when, suddenly and against the warning of the other boys, he took hold of the ladder, put his foot upon the oil box, and attempted to ride in that position; declaring "that he was going to ride to the junction." The only evidence as to the moving of the engine after the boy got on the train is that the train made "a little jerk."

The conduct of the car repairer in inviting the boys into the yards to assist him in moving his cars was most reprehensible, and, if defendant were bound by his conduct--a point which we do not at this time decide--and the injury had been the proximate result of this misconduct we should have little difficulty with the case. But the evidence shows that this act, culpable as it undoubtedly was, was not the proximate cause of the injury. The boys had left the car repairer, and had ridden or walked down to the highway crossing, and were...