Kerr v. Keokuk Waterworks Co.

• Decision Date: 08 October 1895
• Parties: KERR v. KEOKUK WATERWORKS CO.
• Court: Iowa Supreme Court

95 Iowa 509

64 N.W. 596

KERR

v.KEOKUK WATERWORKS CO.

Supreme Court of Iowa.

Oct. 8, 1895.

Appeal from superior court of Keokuk, H. Bank, Jr., Judge.

The plaintiff is the administratrix of the estate of H. E. Kerr, deceased. The defendant is a corporation, and owns and operates waterworks at the city of Keokuk. H. E. Kerr was in the employ of the company for about three years. He was engineer for the works, and had supervision of the operation of the pumping machinery. About the 1st day of March, 1893, he became sick of the disease called “La Grippe,” and on the 13th day of the same month he died. This action was brought to recover damages on the ground that his death was caused by the negligent and wrongful acts of the defendant. There was a trial by jury, which resulted in a verdict for the plaintiff for $3,000. From a judgment on the verdict, the defendant appeals. Reversed.Jas. C. Davis, for appellant.

J. F. Smith, for appellee.

ROTHROCK, J.

It is not claimed that the defendant is in any way responsible for the original attack of sickness of the deceased. The fact is the disease originated without any known cause, and Kerr continued to perform his duties as engineer at the waterworks for three or four days, and until Saturday evening, March 4th, when he laid off or quit, as was supposed temporarily, because of his sickness, and his place at the works was taken by D. W. Swartz, the superintendent of the company. On the following Monday morning he went to the office, and drove out to the works in company with the superintendent, and said that, if anything went wrong, to send for him. He was again at the office of the company on Friday evening, March 7th, and had a conversation with the superintendent. On Thursday morning, the 9th of March, a pump at the plant, which had been recently put in position under the supervision of Kerr, did not operate properly, and the superintendent and other employés were unable to remedy the defect. The superintendent sent a carriage to the place where Kerr was stopping, with a request that, if he was able, he (the superintendent) would like to have him come to the waterworks, that something was wrong with the pump. A carriage was procured, and one Evans, who had been in the employ of the company, together with the driver of the carriage, went to the house where Kerr was stopping, and delivered the message. Kerr dressed himself, and went to the works, and in a very short time rectified the trouble with the pump, and returned in the carriage to the house where he was staying. From the time of his return from the works he continued to grow worse, and four days after that he died. The cause of action is founded upon what occurred on the morning of the 9th of March. The court, in its instructions to the jury, stated the charges of negligence as follows: “That on or about the 9th of March, 1893, said defendant caused the said H. E. Kerr, now deceased, to be exposed, by taking him away from the house where he was lying sick at a time when he was unable to judge himself as to his going out, and was unfit to be removed; that such removal was done by the agents and servants of the defendants; and that it was done in so negligent and reckless a manner as to cause the death of said H. E. Kerr.” A number of witnesses were examined as to the condition of the deceased on the morning when the message was sent to Kerr by the superintendent of the company; and it appears that he had been under the care of a physician for several days before that time, but up to the 8th day of March he went to the physician's office for treatment. The physician advised him to remain in his bed, and the trip to the waterworks was in violation of this order. The contention of plaintiff's counsel is that the defendant's messenger who went after the deceased with the carriage knew of the physician's order, and, in utter disregard thereof, took the patient from the house, and, by reason of the exposure, death ensued.

We will not set out the testimony of the witnesses. There is a dispute as to the correctness of the appellant's abstract, and we have examined the transcript to some extent. A fair consideration of all the evidence in the case leads the mind to a very satisfactory conclusion that there was no ground upon which to found a verdict for the plaintiff. There is not the least semblance of evidence that the messenger sent for Kerr used any force or even persuasion to induce the sick man to go to the waterworks. He delivered the message verbally in the same terms in which it was communicated to him; and there is no evidence from which any jury or court would be justified in finding that the deceased was...