Keist v. Chi. G. W. Ry. Co.

• Decision Date: 15 December 1899
• Parties: KEIST v. CHICAGO G. W. RY. CO.
• Court: Iowa Supreme Court

110 Iowa 32

81 N.W. 181

KEIST

v.CHICAGO G. W. RY. CO.

Supreme Court of Iowa.

Dec. 15, 1899.

Appeal from district court, Blackhawk county; A. S. Blair, Judge.

Action to recover damages resulting from the death of Edward McGrath, alleged to have been caused by negligence of the defendant without fault on the part of the deceased, while he was in the employ of the defendant as a brakeman, and in the line of his duty. The defendant answered, denying negligence on its part, denying care on the part of deceased, and alleging that deceased knew of the danger, that he made no objections thereto, was promised no change therein, and continued in the service. After all the evidence was introduced, the defendant moved for a verdict on the grounds that the evidence does not show that it was negligent as alleged, and does show that deceased was guilty of negligence contributing to his injury. This motion was sustained, and verdict and judgment rendered for the defendant. Plaintiff appeals. Reversed.Birdsall & Brunn and Powell & Paschal, for appellant.

O. C. Miller and J. E. Williams, for appellee.

GIVEN, J.

1. There is no dispute as to the material facts, and they are, in substance, as follows: The deceased, a brakeman, with experience of a year or more, was in the employ of the defendant as head brakeman on a freight train, and had been, for about one month, running on a line between Des Moines and Oelwein. On the 18th day of March, 1897, he was working on a freight train being run northeast from Des Moines to Oelwein. At Reinbeck this train was to be run in from the southwest onto a side track south of the main line, to permit another train, due in five minutes, to go southwest. Two cars were standing apart on this side track, which it was necessary to couple in front of the engine that they might be pushed further in on the side track so that the train would clear the main line. On the south side of this side track there was a stock chute, the platform of which was about on a level with the floor of freight cars, and within 5 to 7 inches of the side of passing cars at the west end, about 8 or 9 inches at the middle, and 11 1/2 inches at the east end. The deceased, after coupling the first car to be pushed to the front of the engine, went upon that car to release the brakes, and, having done so, went down a ladder on the northeast end of said car, and on the northeast corner thereof, for the purpose of reaching the ground so as to couple that car to the other end to be pushed in. To reach the ground it was necessary for him to step from the bottom of the ladder to the stirrup or step at the bottom and on the side of said car, and to take hold of a small handhold placed there for that purpose. When deceased made this step, he was within about 10 feet of the chute, and, discovering the danger of being caught between the chute and the car, he signaled the engineer to stop, and attempted to get upon the chute, but his left foot slipped, and he was caught between the chute and car, and received the injuries which caused his death in a few days thereafter. At the time the deceased came down the ladder, the train was being moved at about two or three miles per hour, and his signal to stop was promptly obeyed, and the train stopped by the time the body of deceased was rolled two or three times around between the car and chute. Other facts will be noticed further on.

2. Defendant was permitted, over plaintiff's objection, to introduce evidence as to the construction of stock chutes on the Chicago, Rock Island & Pacific Railway between Des Moines and Grinnell, and on the Des Moines. Northern & Western Railway between Des Moines and Fonda. We do not understand the defendant as claiming that this evidence was competent to show absence of negligence on its part. The usual custom or practice of other railroad corporations would not exempt the defendant from liability if the custom or practice disregards the safety of the employé. Allen...