Korab v. Chi., R. I. & P. Ry. Co.
| Decision Date | 14 April 1914 |
| Citation | 146 N.W. 765,165 Iowa 1 |
| Parties | KORAB v. CHICAGO, R. I. & P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Johnson County; R. P. Howell, Judge.
Action for damages, based upon negligence resulting in death of plaintiff's decedent. Trial to a jury, resulting in a verdict for plaintiff. Defendant appeals. Affirmed.R. L. Parrish, of Des Moines, and H. G. Walker, of Iowa City, for appellant.
Wade, Dutcher & Davis, of Iowa City, for appellee.
I. This is an action for the death of Elmer A. Little, a brakeman upon a freight train operated by defendant. This case was first tried in May, 1909, and a verdict directed for defendant. Upon appeal the case was reversed and remanded for a new trial, the decision being reported in 149 Iowa, 711, 128 N. W. 529, 41 L. R. A. (N. S.) 32. This appeal involves the questions arising upon the retrial.
The petition alleges, in substance, that on the evening of October 10, 1907, at Oxford, Iowa, the decedent, Little, was in performance of the duties of his employment as a brakeman; that it was the duty of the defendant to block its guard rails, but that the defendant at that point negligently omitted to properly and sufficiently guard or block the space between the guard rail and main rail, so that said space became a dangerous trap to brakemen and other employés, in consequence of which negligence, without contributory negligence on the part of the decedent, his foot became caught and held fast in said space, and he was killed. The original petition also contained an allegation of negligence as to a pile of boards left negligently near the track, which was in some manner instrumental to the injury, but this ground of negligence was not submitted to the jury. The answer of defendant was a general denial, and by a separate division that defendant did not at the time block, and for several years prior had not blocked, its guard rails, and that decedent assumed the risk thereof.
II. On the previous trial of this case, on the appeal to this court, we held the facts were such that the question of contributory negligence should have been submitted to the jury, and the same was also held as to the assumption of risk. Counsel for appellant concede that in the present record there is no material change in the facts bearing upon those questions, and that the former decision must stand as the law of the case.
As to the additional question whether there was negligence of the defendant in permitting unblocked frogs in its yards, it was held in the former opinion that the facts were such as to justify its submission to the jury. On the retrial the defendant, this appellant, introduced much testimony, not presented at the first trial, tending to show that among experienced railroad men and construction engineers there was, at the time of the happening of this accident and is yet, an honest difference of opinion as to which is the safer, the blocked or the unblocked frog, and that under such evidence it could not be found that the defendant was negligent in permitting its frogs to be unblocked. Witnesses testified as to the custom or practice of about 100 different railroads throughout the United States as to blocking frogs. The testimony disclosed that at or about the time material to this inquiry the many different witnesses examined upon this subject were familiar with the use of blocks for guard rails as a railroad appliance; that they knew of guard rails being blocked by some roads and unblocked by others in 1907 and before that time. Some of the witnesses testified that the unblocked frog was safer; others that the blocked frog might reduce the danger to trainmen; that if guard rails could be well blocked and kept well blocked they might be of some assistance; and another that “in my experience it is very much safer to be without blocking than to have blocking that is not in perfect condition.” Summing up the testimony of these many witnesses, all of whom may admittedly be considered as men of experience in their particular lines of work and duty, in the construction, maintenance, and operation of lines of railway, the evidence, when accepted in the light claimed for it by the appellant, permits the conclusion of fact that in 1907, and prior thereto, among the class of men so testifying, there was no uniform practice as to blocking frogs, but there was a difference of opinion, based largely upon operating advantages, including safety to the public and to employés, as to which was the better plan; some roads blocking frogs and others not. From the conclusion thus drawn the appellant urges that under the law there can be no liability in the present case.
III. We accept the statement of the proposition relied upon by counsel in argument as fairly presenting the precise question raised, and which was not, on the former appeal, considered in the light of the proof now in the record: The question presented is one in which there is a want of harmony in the authorities, and which in the form stated has not been the subject of decision by this court, although, as we shall later note, what we consider to be the controlling principle, as bearing upon the question of duty and negligence, and proof of such, has had frequent announcement by us. It cannot be questioned but the cases relied upon by the appellant give support to its claim, and in some instances decide without qualification that from a state of facts such as appear in this record there can be no finding of negligence. Of this line of cases we note O'Neill v. C., R. I. & P. Ry. Co., 66 Neb. 638, 92 N. W. 731, 60 L. R. A. 443, 1 Ann. Cas. 337. In that case an employé who had been injured alleged negligence in an unblocked frog, which caused his injury. There was a directed verdict for the defendant. On appeal the judgment was reversed, but upon a rehearing it was affirmed. We quote from the opinion, as it quite clearly states as the law adopted by that court that which is now contended for by the appellant: The discussion of the question by the Nebraska court is extended, but in the quotation above we have presented sufficient to indicate the line of argument which was followed.
The question was also considered in Southern Pacific Ry. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391. In that case the decedent had lost his life because of an unblocked frog, and action for damages was brought by his administratrix in the then territory of Utah. The trial court refused certain instructions, and refused to direct a verdict on the motion of the defendant. Upon submission to the jury a verdict was rendered in favor of the plaintiff, which was affirmed by the Supreme Court of the territory. The case was taken on error to the Supreme Court of the United States. The evidence tended to show that the unblocked frog was then generally used in the West, and that it was better than the blocked frog. In the trial court the defendant had asked an instruction to the effect that if “the jury found from the evidence that railroad companies used both the blocked and the unblocked frog, and that it is questionable which is the safest or most suitable for the business of the roads, then the use of the unblocked frog is not negligence.” This instruction was refused, and upon the final appeal the court held in the cited case that it should have been given. That court also held that, in view of the facts and the authorities cited by it in its opinion, the defendant was entitled, not only to the instruction prayed for, but that upon the whole evidence the prayer for a peremptory instruction in the defendant's favor ought to have been granted. Among the cases cited by the appellant in support of its position are Reese v. Hershey, 163 Pa. 253, 29 Atl. 907, 43 Am. St. Rep. 795;Dooner v. Del. &...
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