Hunt v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 21 November 1917
• Docket Number: 31053
• Citation: 165 N.W. 105,181 Iowa 845
• Parties: C. U. HUNT, Appellee, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

165 N.W. 105

181 Iowa 845

C. U. HUNT, Appellee, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

No. 31053

Supreme Court of Iowa, Des Moines

November 21, 1917

Appeal from Page District Court.--A. B. THORNELL, Judge.

ACTION for damages for personal injuries. At the close of the evidence there was a directed verdict for the defendant, on the ground of failure of proof of negligence. Later plaintiff's motion for new trial was sustained. From such order the defendant has appealed.

Reversed.

Scott & Peters, Palmer Trimbel, and M. J. Roberts, for appellant.

Earl R Ferguson and C. R. Barnes, for appellee.

EVANS J. GAYNOR, C. J., LADD and SALINGER, JJ., concur.

OPINION

EVANS, J.

The plaintiff, at the time of the injury complained of, was a conductor for the defendant railroad company. His run was between Centerville and Keokuk, Iowa, the railroad, however, passing through a portion of the state of Missouri. The plaintiff received his injuries on July 19, 1913, near the town of Memphis, Missouri. His claim is that, while engaged in the line of his duty on a westbound freight train, and while standing in the caboose thereof, there was a sudden jerk of the train, which threw him to the floor, whereby he sustained the injuries complained of. His averment is, in substance, that the jerk of the train was unusual in degree and that it was reckless and negligent. The petition avers that the place of the accident was about one mile west of Memphis. It appears also from evidence that the water tank was one mile west of such town; that there is a down grade for the greater part of the distance from the town to the water tank; that the train in question made its usual stop at the water tank.

As to the alleged accident, the plaintiff testified as follows:

"I remember some sort of an accident happened down the line there after we left Memphis, something like a mile. We were going down hill. I could not say whether we were just rounding the curve at that time or not. The train I was on usually takes water down there. We had got to the water tank. The train had attained a speed of something like 20 to 25 miles per hour. I was setting out cars on the wheel report and entering other cars that were picked up. I had not finished that work yet. I was standing up, with the train book in one hand, and setting them out just as I would do on any other trip. I had book and pencil in my hand. * * * I was there booking those cars and filling out the cars, and all at once there was an awful shock that threw me,--what I hit against I could not say,--and that is the last I remember until I came to at home. I have been in the railroad service for about seven years, as brakeman and conductor,--all in the freight service; always working for the C. B. & Q. * * * A. One of the most violent shocks I ever received in my working capacity while on the road. * * * A. This was the most violent shock I ever received. I was thrown to the floor towards the engine. I do not remember anything at all until after I was thrown until along that night. Q. Now, basing your answer and opinion and your own experience of seven years in the freight service,--were you then so familiar with the division between Centerville and Keokuk at that time? A. Yes. Q. What might have caused this shock, if you say that you know? A. It might have been caused by the engineer shutting off the throttle with the spring behind the draw-bar, which, when shut off, would force the front end to stop and run the rear end all together with a terrific shock. It may have been caused by his allowing his air to go into emergency all at once. There wasn't any warning given me that I know of at the sudden jerking of the train, or stopping of it. * * * I do not know of any reason or necessity for train being stopped that suddenly. * * * It is about a mile from the Memphis station to the water tank. I was away from this station when I felt the shock, in the neighborhood of a mile. The engine was supposed to stop there for water, and I knew that. They don't whistle for the water tank. I have traveled over the road a great many times as freight conductor."

There was no other affirmative testimony pertaining to the accident than the foregoing. That is to say, though other members of the train crew testified on the subject, they all denied that there was any such accident, and denied that the plaintiff's injuries were caused in the manner described by him. This conflict of the evidence does not concern us on this appeal, except that it confines the plaintiff's proof to the very narrow ground covered by his own evidence as a witness, without the aid of any additional facts established by other witnesses. The order appealed from was one granting a new trial. Both parties, however, have planted themselves squarely upon the question of the merit of plaintiff's case, and of the propriety of the first ruling of the court in directing a verdict for the defendant. The case appears to be one wherein we ought to meet the discussion upon the merits, rather than to deal with the question of discretion in the granting of a new trial.

That the plaintiff in some manner suffered serious injuries is undisputed. That, for the purpose of this appeal, he must be deemed to have suffered the same in the manner described by him is also clear. The decisive question is, was the evidence of the plaintiff sufficient to sustain a finding of negligence against the defendant, if such verdict were rendered? The plaintiff invokes the doctrine of res ipsa loquitur, and contends that the fact of the accident coupled with evidence that there was no obstruction upon the track, makes a prima-facie case of negligence. The defendant denies that this doctrine is controlling of or applicable to the case. The defendant also makes the sweeping contention that, under the holdings of the Federal courts, the doctrine of res ipsa is never applied in master and servant cases. The parties agree that the case is governed as to the law by the Federal Employers' Liability Act. Much attention is devoted in the briefs to the question whether, under the present state of the law, the doctrine of res ipsa is applicable to master and servant cases. In support of its contention, the defendant relies upon Patton v. Texas & P. R. Co., 179 U.S. 658, 45 L.Ed. 361, 21 S.Ct. 275; also, Midland V. R. Co. v. Fulgham, 104 C.C.A. 151 (181 F. 91). We are not disposed to enter into a very exhaustive discussion of this rather elusive subject. A few general observations thereon will suffice to indicate our view that the doctrine is not controlling in the present case. In its extreme application, this doctrine would permit the mere fact of an accident to be deemed as prima-facie evidence of negligence as the cause thereof. In this form, the doctrine has not been favored by the courts, and its application has been confined to a very limited field, its most common and prominent application being in favor of a passenger against a common carrier. See Case v. Chicago, R. I. & P. R. Co., 64 Iowa 762, 21 N.W. 30; Baldwin v. St. Louis, K. & N. R. Co., 68 Iowa 37, 25 N.W. 918; Kuhns v. Wisconsin, I. & N. R. Co., 70 Iowa 561, 565, 31 N.W. 868; O'Connor v. Illinois Cent. R. Co., 83 Iowa 105, 48 N.W. 1002; Haden v. Sioux City & Pac. R. Co., 99 Iowa 735, 48 N.W. 733; Brownfield v. Chicago, R. I. & P. R. Co., 107 Iowa 254, 77 N.W. 1038. In this form, it has not been deemed applicable to master and servant cases. But there has been a quite uniform tendency in the courts to give recognition to the doctrine in a qualified form, and to extend its applicability accordingly. Marceau v. Rutland R. Co., 211 N.Y. 203 (105 N.E. 206, 207). The doctrine in such qualified form is not that the mere fact of an accident is, of itself, evidence of negligence as a cause thereof, but that the nature of an accident in manner and circumstance may be such as to indicate negligence as a cause thereof; that is to say that the circumstances of an accident may be of such a nature as to constitute circumstantial evidence tending to show negligence. Some accidents, therefore, may be of such a nature as to render the doctrine applicable, while other accidents may be of such a nature as to render it inapplicable. In considering this question, it must be borne in mind that it is not the fact of injury of a plaintiff which gives rise to the application of the doctrine, but it is the accidental event from which injury resulted. Fitch v. Mason City & C. L. Trac. Co., 124 Iowa 665, 668, 100 N.W. 618; Cahill v. Illinois Cent. R. Co., 148 Iowa 241, 125 N.W. 331; Thomas v. Boston El. R. Co., 193 Mass. 438 (79 N.E. 749); Wyatt v. Pacific Elec. R. Co., 156 Cal. 170, 103 P. 892; Levin...