Knott v. Dubuque & S. C. R. Co.

• Decision Date: 01 February 1892
• Citation: 84 Iowa 462,51 N.W. 57
• Court: Iowa Supreme Court
• Parties: KNOTT v. DUBUQUE & S. C. R. CO. ET AL.

84 Iowa 462

51 N.W. 57

KNOTT

v.DUBUQUE & S. C. R. CO. ET AL.

Supreme Court of Iowa.

Feb. 1, 1892.

Appeal from district court, Lyon county; GEORGE W. WAKEFIELD, Judge.

Action to recover for personal injuries. The case, as presented in the pleadings, is in substance as follows: On September 5, 1889, plaintiff filed his petition against the Dubuque & Sioux City Railroad Company, and afterwards by amended and substituted petition made the Cherokee & Dakota Railroad Company a party defendant. The plaintiff alleges that on or about February 1, 1888, he was employed by defendants jointly as a fireman on a locomotive engine; that part of his duty was to go on the tender to adjust the spout in taking water; and that on or about that day, while in the performance of that duty, and in the exercise of care, he was, by a sudden and violent movement of the engine, thrown violently backwards, and injured, to his damage. It is alleged that said injuries were caused by the negligence of defendants in that the engine was defective, so that from leaking steam, or other cause unknown to plaintiff, it would start suddenly of its own accord; that defendants failed to provide safe and suitable machinery; that sufficient help was not furnished to break up the coal for the engines, wherefore the coal on this engine was in large, slippery chunks; that coal was negligently permitted to accumulate on the end and sides of the tender, and about the man-hole where plaintiff had to go; and that the engineer in charge of said engine negligently caused or permitted it to move backward or forward without warning to plaintiff. The petition, by amendment, contains this further allegation: “That since the injuries of which plaintiff complains the Sioux City and Dubuque Railway Company have for a valuable consideration agreed in writing to pay, among others, the claim of plaintiff against the said Cherokee & Dakota Railway Company, and all other claims of a like nature, to this plaintiff for the injuries complained of in this action.” The Cherokee & Dakota Railway Company answered, denying generally, and denying that the court had jurisdiction, for the reason that at the time of the commencement of the suit that company was not a resident of Lyon county, had no place of business therein, had no officer or agent in said county or at any other point in the state of Iowa except the county of Dubuque, in which notice of suit could be legally served; that the service in this case was made in Dubuque; and that at the time of the commencement of this suit this defendant had no railroad or interest in any railroad, and did not operate any railroad, in the county of Lyon. This defendant also alleged that plaintiff knew of the condition of the machinery, engine, coal, and other appliances prior to the accident, and waived any right to recover by continuing in the service. The Dubuque & Sioux City Railroad Company answered, denying generally, and alleging that at the time of the alleged injury it had no interest whatever in the road passing through Cherokee from Iowa Falls to Sioux City, Iowa, and from Onawa, Iowa, to Sioux Falls, Dak., through Lyon county; that it did not own said road, had no lease of the same, had no officers or agents thereon, and had no connection with the matters and things charged in plaintiff's petition. Upon these issues the cause was submitted to a jury, and a verdict and judgment for $9,000 entered against the defendants, from which they appeal.J. F. Duncombe and J. M. Parsons, for appellants.

Van Wagenen & McMillen, for appellee.

GIVEN, J.

1. Question is made in argument as to the jurisdiction of the district court of Lyon county over the defendant the Cherokee & Dakota Railroad Company. The record before us shows that before answering that company filed its motion, supported by affidavit, for a change of the place of trial for the following reasons: That the Dubuque & Sioux City Railroad Company did not own, and was not concerned in the operation of, the railroad at the time of the alleged accident, and that the “defendant the Cherokee & Dakota Railroad Company, at the time of the service of this notice, neither owned nor operated any railroad in or through the county of Lyon, in which this suit is brought; that it had no interest whatever in said railroad at the time this defendant was made a party to said suit; that it had no agent or officer at any point in the state of Iowa on which an original notice could be legally served, except in the city of Dubuque, Iowa.” A counter-affidavit was filed, stating “that the Dubuque & Sioux City, by written contract, agreed to and did assume the payment of this plaintiff's claim for damages; and both defendants are jointly liable to plaintiff on his claim in this suit.” The record fails to show that any ruling was ever made upon this motion. We have seen that in its answer the Cherokee & Dakota Railroad Company denied the jurisdiction of the court for the reasons stated in the motion, but it does not appear that any action was taken upon the denial. There being no ruling upon this motion, or no exception by the mover if it were ruled upon, the party moving must be taken to have waived his objection to the jurisdiction, and to have submitted thereto. He will not, therefore, be heard to afterwards question the jurisdiction by answer. Code, § 2589. It appears that at the time of the alleged injuries to appellee the defendant the Dubuque & Sioux City Railroad Company was not operating a line of railroad in Lyon county, but was doing so at and before the commencement of this action. As it was operating a line of railroad in that county at the commencement of the action, it was then subject to the jurisdiction of the courts in that county. As we hold that the defendants are properly joined in this action, it follows that, having jurisdiction as to the one it has also jurisdiction as to the other.

2. Before answering, the Dubuque & Sioux City Railroad company filed its motion to require the plaintiff to state more specifically wherein the engine was defective, in what respect defendants failed to supply suitable machinery, and whether the agreement set up in the petition was in writing or oral, between whom made, and whether plaintiff was a party thereto. This motion was overruled, except so far as to require plaintiff to state whether the agreement was oral or in writing, “to which defendant the Cherokee & Dakota Railroad Company excepted.” It will be observed that the party making the motion did not except to the ruling, and that the party excepting did not make the motion. These defendants afterwards answered separately, and we think the ruling must be regarded as acquiesced in by the party making the motion, inasmuch as that party did not except to the ruling. The ruling was without prejudice, as the plaintiff did amend, stating wherein the engine was defective, and that the agreement was in writing. The parties to it had been previously stated.

3. Appellants contend that it is shown by the evidence that they were improperly joined as parties defendant, and for that reason the court should have sustained their motion to dismiss. The petition charges that they jointly employed the plaintiff, and that they were jointly guilty of the negligence causing the injury. There is no testimony to support this charge. It appears without conflict that the Dubuque & Sioux City Railroad Company was not in any way concerned in the operation of the railroad upon which plaintiff...