Hosic v. Chi., R. I. & P. Ry. Co.

• Decision Date: 10 May 1888
• Citation: 75 Iowa 683,37 N.W. 963
• Court: Iowa Supreme Court
• Parties: HOSIC v. CHICAGO, R. I. & P. RY. CO.

75 Iowa 683

37 N.W. 963

HOSIC

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

May 10, 1888.

Appeal from district court, Mahaska county; J. KELLY JOHNSON, Judge.

Petition of Clinton B. Hosic, by his next friend, against the Chicago, Rock Island & Pacific Railway Company for $15,000 damages. This is an action brought to recover for personal injuries alleged to have been caused by the fault of defendant. The case was tried to a jury, and a verdict returned for plaintiff. Judgment was rendered on the verdict, and defendant appeals.Thos. S. Wright and Lafferty & Johnson, for appellant.

John F. Lacey, for appellee.

ROBINSON, J.

On the 23d day of November, 1883, plaintiff was in the employ of defendant as head brakeman on a freight train. He was about eighteen years of age, had been in the service of defendant for two months preceding the date named, and had acted as brakeman at different times for a year. At 12:45 o'clock in the morning of the day named the train on which plaintiff was employed left Rock Island on its run through Sigourney to Oskaloosa. The train contained a platform car, loaded with plows and other farming implements, which, at the time in question, was the second car from the engine. This car was not provided with a foot-board, and could be passed over only by stepping on the implements with which it was loaded. As the train approached Sigourney, the plaintiff attempted to pass over this car to set a brake, and in so doing fell to the ground in such a manner that several car-wheels passed over his right arm, crushing it, and causing it to be amputated above the elbow. Plaintiff contends that his fall was due to the negligence of defendant in not providing the car in question with a suitable passage-way over its load.

1. It is claimed by appellant that the car from which plaintiff fell was loaded in the manner usual on its road, and that it was not customary at that time, and never had been, to place foot-boards over cars so loaded; that plaintiff knew these facts before he was employed by defendant; and that, by accepting service with that knowledge, he assumed all risks and hazards growing out of the manner of loading such cars without foot-boards. We understand that foot-boards, otherwise known as “running-boards,” are placed lengthwise of the car, and above their loads, in such manner as to afford a convenient way for the use of brakemen in passing from one part of the train to another. Under the charge of the court, the jury must have found that defendant was negligent in not providing a foot-board for the car in question. This being true, the fact that such negligence was usual or customary would not relieve defendant from liability for its consequences. Hamilton v. Railroad Co., 36 Iowa, 38. But we do not think the jury would have been justified in finding from the evidence that plaintiff assumed the risk alleged by defendant. It is true that it was common for defendant to haul cars of agricultural implements which were not provided with foot-boards, but it was not shown to be usual to place such cars where the brakemen were required to pass over them in the discharge of their duties. On the contrary, the jury might well have found from the evidence that it was usual to place them near the middle of the train. As to whether it was the rule of defendant to provide cars like that in controversy with foot-boards, the evidence was conflicting, but the jury were justified in finding that it was negligence not to provide them.

2. Appellant insists that if appellee knew, before going onto the car from which he fell, that an attempt to pass over it would be dangerous, then he was negligent in making the attempt, and should not be permitted to recover in this action, for the reason that his own wrong contributed to the injury of which he complains. It is even suggested that plaintiff should have refused to go out with his train because it contained the car in question. Whether plaintiff was negligent in attempting to pass over the car does not depend entirely upon his knowledge of the danger involved, but rather upon all the circumstances of the case. It was not the duty of plaintiff to refuse to go out with his train. When this left Rock Island, it was dark, and it is not shown that he knew there was no passage-way over the car in question until the moment of his going onto it at the time of the accident. We think the evidence shows that at that time he must have known the condition of the car, and is chargeable with knowledge that an attempt to pass over it would be dangerous. Will that fact defeat his recovery? Appellant...