Jeffrey v. Keokuk & Des Moines R. Co.

• Decision Date: 04 October 1881
• Citation: 56 Iowa 546,9 N.W. 884
• Parties: JEFFREY v. KEOKUK & DES MOINES R. CO.
• Court: Iowa Supreme Court

56 Iowa 546

9 N.W. 884

JEFFREY

v.KEOKUK & DES MOINES R. CO.

Supreme Court of Iowa.

Filed October 4, 1881.

Appeal from Lee circuit court.

This is an action at law to recover damages which it is alleged the plaintiff sustained while in the employment of the defendant, by being run over by a car through the negligence of certain co-employes. The petition and answer are in the usual form, the plaintiff claiming that he was injured by reason of negligence in the persons having charge of said train, and averring due care on his part; and the defendant denying such negligence and pleading contributory negligence upon the part of the plaintiff. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff for $5,500. Defendant appeals.Gilmore & Anderson, for appellants.

Craig & Collier, for appellee.

ROTHROCK, J.

1. The main facts attending the accident are not in dispute They are as follows: The plaintiff entered the service of the defendant on the tenth day of July, 1876, as a shoveler on a construction train having its headquarters at Summit station. On the twenty-sixth of August, 1876, this construction train was being employed in hauling dirt to certain places west of Summit station, and, as was its custom, it was coming into the station to lay up for the night. The train consisted of an engine and tender, and a way car and some 10 or 12 flat cars. There were about 40 laborers working on said train. There were two tool boxes, with a passage-way between them, on or near the rear end of the last flat car, and next to the way car. The way car had a door in the end next to the cars with the tool boxes. The train usually started from the dump about the time, or before, all the dirt was thrown from the cars, and as soon as the dirt was all removed the men walked along the train while it was in motion, deposited their tools in the tool boxes, and went into the way car to get their dinner buckets and any of their clothing which might be there, and then they usually returned to the front of the train next the locomotive, so that they could get off opposite their boarding-house. On the evening of the accident the plaintiff went back to the rear of the train for the purpose of getting his coat and dinner bucket. When he reached the rear of the last car, and was near the tool boxes, Mike O'Neil, the conductor of the train, was standing in the door of the caboose. The speed of the train was slackened somewhat, and O'Neil stopped one Coffey, who was in front of the plaintiff and about entering the way car, and warned him off. O'Neil stopped and pulled the pin which coupled the way car to the train, and raised up and signalled the engineer, who put on steam, which increased the speed of the train, suddenly producing a jerk, by reason of which the plaintiff and another of the employes fell in the opening made in the train by the uncoupling and increased speed, and were run over by the caboose. One of the plaintiff's legs was broken and crushed in such a manner as to require amputation above the knee, and he was otherwise injured. The other employe who fell from the car at the same time was killed.

The theory of the plaintiff is that the conductor was negligent in uncoupling the cars and giving the signal to the engineer, and that the engineer was negligent by putting on too much steam, suddenly producing a violent jerk which threw him from the car. Counsel for the defence contend that the plaintiff was guilty of contributory negligence by standing within from three to five feet of the end of the car, knowing that the conductor pulled the pin and made the signal, and knowing that the man who was in front of him had been warned of the danger, and by carelessly standing still without attempting to avoid injury to himself by any means whatever. At the instance of the plaintiff the court submitted to the jury certain special interrogatories, which, with the answers thereto, were as follows:

(1) Were the conductor and engineer on defendant's train guilty of negligence which was the proximate cause of the injury? Ans. Yes.

(2) Did O'Neil see Jeffrey on the tool car before he (O'Neil) pulled the pin between the way car and the tool car? Ans. Yes.

(3) Did O'Neil know where Jeffrey was standing on the tool car at the time he gave the signal to the engineer to go ahead? Ans. Yes.

(4) Did O'Neil or the engineer give Jeffrey any warning which was reasonably sufficient to have put him on his guard against what followed? Ans. No.

(5) Was it the act of the conductor and engineer that put Jeffrey in a place of danger? Ans. Yes.

(6) Did O'Neil see Jeffrey's position on the tool car in time to have avoided the injury to him by exercising ordinary care? Ans. Yes.

(7) If you answer the sixth question “Yes,” then answer the following question: Did O'Neil, after seeing Jeffrey's position on the tool car, exercise ordinary care and precaution to avoid injuring him? Ans. No.

Certain interrogatories were also submitted to the jury at the instance of the defendant, which, with the answers, are as follows:

(1) How near the rear end of the tool car was the plaintiff standing at the time he fell off? Ans. From three to five feet.

(2) Was not he standing too near the end of the tool car to be reasonably safe at the time he fell off? Ans. No.

(3) Was he not, at the time he fell off, standing so near the end of the tool car that his position was evidently dangerous, in case the speed of the car he was on was increased in an ordinary degree, unless he held on to something, or braced against the start? Ans. No.

(4) Did plaintiff make any efforts at all to secure himself against a forward movement on the car on which he stood. Ans. No.

(5) If he did make such efforts, what were they? Ans. No effort.

(6) Did plaintiff see the conductor pull the pin? Ans. Yes.

(7) How much time elapsed after the conductor pulled the pin, and before the speed of the tool car was increased? Ans. About five seconds.

(8) Was plaintiff exercising ordinary and reasonable care for his own safety after he saw the pin pulled, and up to the time he fell off? Ans. Yes.

(9) Was what plaintiff saw the conductor do and heard him say in the way of uncoupling, giving warning and signal, reasonably sufficient to put plaintiff on his guard against what was likely to follow? Ans. No.

(10) Does the evidence show that plaintiff's injury was in consequence of the negligence of any of the employes of the company? Ans. Yes.

(11) If you say it was, then which one was it? Ans. Conductor and engineer.

(12) In what particular things did such negligence consist, if you say there was such negligence? Ans. In cutting train in two while in motion and unusual jerk.

(13) Did not plaintiff know as much about what was going to happen after the signal to go ahead was given as O'Neill did? Ans. No.

(14) If you have answered that the injury was in consequence of the negligence of the conductor, then state in what such negligence consisted. Ans. In cutting train in two while in motion.

(15) If in consequence of the negligence of the engineer, then state in what such negligence consisted. Ans. By giving an unusual jerk.

(16) Did not the conductor, after giving the warning and signal he did give, and knowing that plaintiff saw what he was doing, have reasonable cause to believe that plaintiff could and would secure himself from ordinary jerk of the train. Ans. No.

(17) Is it ordinary prudence, for a man with plaintiff's experience about trains, to stand the distance he was from the rear of a car about to be cut off, under the circumstances this car was? Ans. Yes.

(18) Did the plaintiff see and understand the signal to go ahead. Ans. Yes.

(19) Did he have reasonable cause to know, from anything he saw or heard, that the car on which he stood was about to be separated from the car next behind it. Ans. Yes.

Questions 1, 4, and 5, propounded at the instance of the plaintiff, were objected to by the defendant because each was in fact composed of two questions. The objection urged is that each question joined the acts of the engineer and conductor, and required the jury to answer whether by their joint negligent acts the accident happened. The questions, it appears to us, submit a single proposition; and, although they embrace the acts of two of defendant's employes, they are still a single question. They are not such as tend to confuse a jury by requiring them to draw a conclusion from many facts. Further than this, the jury appear to have fully comprehended the questions, as will appear by the answers to interrogatories 10 and 11, propounded at the instance of the defendant. The attention of the jury was there directed to the same subject, and they distinctly and plainly answer that plaintiff was injured in consequence of the negligence of the conductor and engineer.

2. The defendant moved the court to set aside the verdict because the same was against the evidence, and because the answers to certain of the special findings were the result of prejudice, and were not sustained by the evidence, and for judgment for the defendant upon the special findings. These motions were overruled by the court. The motion for judgment for the defendant on the special findings was correctly overruled, for the simple reason that the answers to the special interrogatories do not show affirmatively that the defendant is entitled to judgment. In regard to the special interrogatories submitted to the jury in this case, we deem it proper to say that the court would have been fully justified in refusing to submit many of them to the jury. It is not the purpose of the statute authorizing this practice to permit parties to submit a lengthy cross-examination of the jury upon every conceivable fact in the case, whether it be proximate or remote to the main inquiry. Such a procedure tends only to confusion. The questions propounded are framed from the stand-point of the party propounding them, and are often ...