Kelsey v. Chi. & N. W. Ry. Co.

• Decision Date: 10 October 1898
• Citation: 106 Iowa 253,76 N.W. 670
• Court: Iowa Supreme Court
• Parties: KELSEY v. CHICAGO & N. W. RY. CO.

106 Iowa 253

76 N.W. 670

KELSEY

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

Oct. 10, 1898.

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

Action to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant as a locomotive fireman. He alleges that the engine upon which he was employed, with several cars attached thereto, “was suddenly, too rapidly, unskillfully, and negligently, without proper warning or signal, backed against other cars of said train, which had been negligently left standing by defendant's employés upon the track,” by reason of which he was thrown from the engine, and seriously injured, without fault or negligence on his part. The defendant answered, denying generally; and, at the close of the evidence on behalf of the plaintiff, the court, on motion of the defendant, directed a verdict for the defendant, and rendered judgment accordingly. Plaintiff appeals. Affirmed.Hayes & Schuyler and Barker & McCoy, for appellant.

Hubbard & Dawley, for appellee.

GIVEN, J.

1. The grounds of defendant's motion for a verdict were that there is not sufficient evidence to sustain a finding that the defendant was guilty of the negligence alleged, and that the evidence shows without any dispute that the plaintiff himself was guilty of negligence which directly contributed to his injury. Plaintiff was at the time he was injured, and had been for over three years, in the employ of the defendant as a locomotive fireman, and was familiar with the duties of a fireman and the manner of making up and moving trains of cars. On the night of June 24, 1893, the engine upon which he worked was engaged in making up a train of freight cars in the yards at Clinton, preparatory to running west. As was his duty, the plaintiff had lighted the headlight and sidelights on the front of the engine before it was brought from the roundhouse. After setting out some cars, the engine, with eight or ten cars attached, was moving to a point west of Fifth street, where it stood for a time, headed west. The next thing to be done upon signal was to back the engine and eight or ten cars attached thereto eastward, and to couple to the other cars composing the train. While the engine was thus standing still, the plaintiff got down from the cab on the north or right-hand side, and passed around to the front of the engine, to see if the lights were burning properly, and, in doing so, discovered that the cap to what is called the “peep hole” was not in proper position. It appears that this cap is removed when the engines are being cleaned in the roundhouse, and that it is the duty of the fireman to see that it is in place when the engine is brought out, because, if not in place, it affects the draft, and impedes the generation of the steam. Seeing that the cap was not closed as it should be, the plaintiff went upon the front part of the engine, and, standing upon the steam chest, tightened the cap, and, while doing so, observed a signal given by some one in the rear of the train, for the engine to back east, so that the coupling could be made. The engine and cars attached were promptly moved backward, and, while moving, the plaintiff stepped from the steam chest to the bulkhead of the engine, and was moving, stooping down to get hold of the flagstaff to balance himself, with the view to getting off the engine at the front, and passing around to the entrance of the cab. While in that position, the standing cars were struck by the moving cars, and the plaintiff thereby thrown from his position on the bulkhead to the ground, and quite seriously injured. There was a footboard with a handrail extending from the cab to the front of the engine, by which the plaintiff could have, after adjusting the cap to the peep hole, returned to the cab in safety. He gives as a...