Koontz v. Chicago, R.I. & P.R. Co.

• Decision Date: 05 December 1884
• Citation: 21 N.W. 577,65 Iowa 224
• Parties: KOONTZ v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO
• Court: Iowa Supreme Court

21 N.W. 577

65 Iowa 224

KOONTZ v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO

Supreme Court of Iowa, Des Moines

December 5, 1884

Appeal from Johnson Circuit Court.

JOHN S KOONTZ was in the employ of the defendant as a brakeman on a freight train, and fell from a bridge and was killed. The plaintiff is administrator of his estate, and seeks to recover damages caused by the death of the deceased. On motion, the court directed the jury to find for the defendant, which they did, and the plaintiff appeals.

AFFIRMED.

C. S Ranck, S. M. Finch and S. H. Fairall, for appellant.

Boal & Jackson and T. S. Wright, for appellee.

OPINION

SEEVERS, J.

A short distance west of Iowa City the defendant constructed a bridge, which formed a portion of its track. At the time of the accident the defendant was engaged in repairing the bridge, or rather was at that time replacing the old with a new bridge. The old bridge, or portions of it, had been taken away, but trains continued to pass over it as previously, except that they were run at a less rate of speed. The accident occurred about 9 o'clock at night. The train was stopped on the bridge because the engineer supposed some of the cars were off the track, or one of the brakes was set. The deceased was riding in the cab with the engineer or fireman, and when the train stopped the fireman picked up a lantern and got down for the purpose of seeing what was the matter, and the deceased also did the same thing, but he did not have any lantern. When the deceased was next seen he was lying at the base of an abutment of the bridge, greatly injured, and because of such injuries he in a few days thereafter died. The deceased must have passed on the grade alongside the cars for a short distance, and stepped off the abutment through an opening in the bridge. There is no evidence tending to show that trains usually stopped on the bridge, or where this one did, for any purpose which required an employe to get down from the train on the track or bridge. The plaintiff claims to be entitled to recover because the bridge was "in an unsafe and dangerous condition for the employes of the defendant, whose duty it was to go upon the same." There was evidence tending to show that, when there is anything the matter with the train which causes it to be stopped, it is the duty of the brakeman to ascertain what the matter is, and in the performance of his duty he may get down on the track and walk alongside of the cars.

One material question discussed by counsel is whether the defendant was negligent in permitting the bridge to be in the condition it was. In determining this question it will be assumed that, but for the repairs being, made the accident would not...