Knapp v. Sioux City & P. Ry. Co.
| Decision Date | 24 October 1884 |
| Citation | 21 N.W. 198,65 Iowa 91 |
| Parties | KNAPP v. THE SIOUX CITY & PACIFIC R'Y Co |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.
THE plaintiff is a locomotive engineer, and was in the employ of the defendant, and the petition states that while the plaintiff, as such engineer, was in charge of a locomotive drawing a train of cars over defendant's road, the "locomotive and train were thrown from the track," and the plaintiff's right arm broken; that the "accident was caused by negligence and the faulty construction of the track; * * * that the ties were rotten and insufficient to hold the sleepers and rails, or weight of a passing train;" and that the accident was not caused by the negligence of the plaintiff. The material allegations of the petition were denied. Trial by jury, and judgment for the defendant. The plaintiff appeals.
REVERSED.
Sapp Lyman & Pusey, for appellant.
Wright & Baldwin and Joy, Wright & Hudson, for appellee.
I.
The material question presented in this record is whether the negligence of the defendant was the proximate cause of the injury received by the plaintiff. The evidence tended to show that the rails spread, and a portion of the train left the track. The locomotive remained, at least partly, on the track. The train consisted of the engine and several freight cars. When the plaintiff found the train was about to run off, or that a portion of it was off the track, he caught the lever, and in reversing it his arm was broken. His object in reversing the lever was to check as soon as possible the speed of the train. At the conclusion of the plaintiff's evidence, the defendant filed a motion which is in these words: "Now comes the defendant and moves this court to instruct the jury to return a verdict for the defendant, and for grounds of said motion states: (1) That the undisputed testimony discloses that the injury for which the plaintiff seeks to recover in this case was received by plaintiff while reversing his engine, and that the risk of accident in the operation of the engine is one incident to the employment, for which plaintiff has no right of action; (2) That plaintiff has not shown that the defective ties and track occasioned the injury complained of, but that the same occurred and was sustained while reversing the engine." The motion was sustained, and the jury instructed accordingly.
It will be observed that the petition states that the accident which caused the injury was caused by the locomotive and train being thrown from the track, and counsel for the appellee insist that the evidence shows that the engine did not leave the track, and that it affirmatively appears that the injury was the result of the act of the plaintiff in reversing the lever, and therefore there is a material variance between the allegations of the petition and the proof. For this reason it is insisted that the court rightly directed the jury to find for the defendant. It must be presumed that the court gave the direction asked on the grounds stated in the motion. It does not appear therefrom that the defendant claimed in the district court that there was a variance, and that for this reason the jury should be directed to find for the defendant. Such question cannot be raised for the first time in this court. Had the motion been based on such ground, the right to amend would have existed. It would be manifestly unjust to deprive the plaintiff of such right. This, however, would be the effect, if we should affirm the judgment of the district court.
II. The plaintiff was injured while he was reversing the lever. There is no evidence tending to show that this was rendered more difficult because the train, or a portion of it, was off the track. If the lever had not been reversed, it cannot be said that the plaintiff would have been in any respect injured. It must, however, be assumed that when a train leaves the track the lives of the employes are endangered. The lever is moved forward, as we understand, for the purpose of starting the train or increasing its speed, and is reversed when it is desired to stop the train as speedily as possible. This forward and backward movement of the lever, no doubt frequently occurs in a day's run. The use, therefore, of the lever must be regarded as one of the incidents and hazards of the plaintiff's employment, and for an accident happening by such use, by which the engineer is injured, it will be conceded that the defendant cannot ordinarily be held liable. The immediate cause of the injury received by the plaintiff was the reversal of the lever. The lever was reversed because the train left the track, and this was caused by the spreading of the rails caused by the defective condition of the track. There was, therefore, a combination of immediate causes...
To continue reading
Request your trial