Kroener v. Chi., M. & St. P. Ry. Co.
Decision Date | 12 May 1893 |
Citation | 55 N.W. 28,88 Iowa 16 |
Parties | KROENER v. CHICAGO, M. & ST. P. RY. CO. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Tama county; L. G. Kinne, Judge.
Action for personal injury. Judgment for plaintiff, and the defendant appealed.Mills & Keeler, for appellant.
Struble & Stiger, for appellee.
The plaintiff was a brakeman in the employ of the defendant company. On the 20th day of May, 1890, and for some time before, his work was on a freight car. On that day he ran into the station of Van Horn about noon, and in the evening he was set at work in the yard with a switching crew, which, besides the engineer and fireman, consisted of three men. It was the duty of one to pull the pins to cut the train or detach the cars to be shoved or “kicked” by the engine onto a track, as desired; another was to “throw the switches;” and the third, which was the plaintiff, on the night in question, acted as “car catcher,”--that is, when cars were shoved in onto a track, and were moving, detached from the engine, it was the duty of the car catcher to climb onto and stop them, or regulate their speed, when necessary. The duties of the car catcher and “pin puller” were to some extent interchangeable, as the situation of the work seemed to require. In the yard at Van Horn was a lead track, running east and west, from which branched several side tracks, and at the junction of each with the lead track was a switch. The switches were numbered consecutively from west to east, and the side track bore the number corresponding with its switch. Some cars had been cut off, and sent in onto track No. 7, and the plaintiff “rode” them to their place. In the mean time the remainder of the crew had cut off five more cars from the train, and “kicked” them back onto the lead track, intending them to be coupled to a car that was standing on track No. 5, but not so as to clear the lead track. The plaintiff passed over from track No. 7, where he had left the cars before mentioned, to the lead track, on which the five cars were moving to the west. The others of the crew, after detaching and sending the cars onto the lead track, went east to do other switching. The speed of these cars on the lead track was slow, and the plaintiff did not attempt to “ride” them, but walked in advance of them towards the car at switch No. 5 to make the coupling when the cars should reach it. On his way he stepped onto the lead track, and it is a theory of the case that his foot became fast between a lead rail and a guard rail, and the moving cars cut off his foot. It is for damage occasioned thereby that this action is brought.
1. The assignment of error mainly relied upon by appellant is that involving contributory negligence on the part of the plaintiff. It is urged that the testimony of the plaintiff shows affirmatively such negligence. The night of the accident was somewhat stormy, and it occurred somewhere from 10 to 11 o'clock. It is undisputed that, before reaching the car where the coupling was to be made, there was no necessity for plaintiff to step onto the track on which the cars were moving, as beside the track, all the way to switch No. 5,--some 80 or 90 feet,--the walk was surfaced with cinders, hard and level. The plaintiff had a lantern, and by attention could see the condition of the walking both between and outside of the rails. It is clearly a case in which, with the thought of danger from stepping on the track in mind, the accident could have been avoided. Appellant, in its contention, for an affirmative showing of negligence on the part of the plaintiff, treats the case as if the facts were that he was walking along the track in front of moving cars, not to exceed two car lengths behind him, when his foot was caught between the guard and main rail, and he was injured. A number of authorities are cited in support of a rule that it is negligence for an employe to walk on the track in front of a moving train, in the discharge of a duty, when the duty can be as well performed by walking where it is safe; and the argument is in support of that, and quite similar rules, as applicable to this case. In this connection, let us look definitely to the particular act of plaintiff resulting in the injury. From 20 to 25 feet east of switch No. 5 is the guard rail where the accident occurred. To this point plaintiff had been walking outside of the track, where it was safe. The cars were moving slowly,--not to exceed 1 1/2 to 2 miles an hour,--and about 2 car lengths behind him. The general condition of the tracks and walks in the yard was good, as plaintiff must, in his work in the yard that evening, have observed. Aside from the movement of the cars, there was nothing to indicate danger from stepping or walking on the track.
The following is the plaintiff's testimony, immediately connected with the accident:
It appears from the cross-examination that plaintiff was quite familiar with switching at way stations along that and other lines of road; that he knew of the relative situations of the switches, frogs, and guard rails, and of his approach to switch No. 5. The following is from the cross-examination: ...
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On Rehearing
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