Kroener v. Chi., M. & St. P. Ry. Co.

Decision Date12 May 1893
Citation55 N.W. 28,88 Iowa 16
PartiesKROENER v. CHICAGO, M. & ST. P. RY. CO.
CourtIowa 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.

GRANGER, J.

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: “Question. When you were going west, as you arrived at the east end of the guard rail at switch No. 5, what happened? Answer. Well, I was walking along, and I got even with the guard rail, and I stepped in. My foot got caught fast between the end of the guard rail and the main lead rail. Q. This switch No. 5, and all the switches, led off from what was known as the ‘lead track?’ A. Yes, sir. Q. When you arrived at the east end of the guard rail, you stepped your foot into the opening in the rail? A. Yes. Q. State whether or not your foot went in between the guard rail at the east of the main rail of the lead. A. Yes, sir. Q. State to what degree it was fastened there,--whether only very slightly, or very fast. A. Well, it was very fast in there, for I jerked a couple of times. I tried to get it out. Q. When you found your foot in that rail, and was very fast, what did you do? A. I made an outcry,--hallooed. Then I tried to jerk my foot out. I kind of jerked down, and I raised up. About the time I raised, the car hit me, and I went down. Q. How many times did you struggle to get out? A. Once or twice. Q. State what efforts you made, within your strength, to extricate yourself from the condition you found yourself in between those two rails. A. Well, I tried to jerk it out; tried to get it out, and stooped down,--kind of. Q. State whether the cars came on you,--these two cars that were kicked to the west. A. Yes, sir. Q. State whether or not you had extricated your foot entirely at the time the cars struck you. A. I don't know as to whether I did or not. It got loose about the time. Whether the car knocked it out of there, or how it just got out, I don't know. Q. State whether you had been able to remove your feet or the leg from the rail before the car struck you. A. No, I don't think I had. I was knocked down. Q. State how your limb lay when you were knocked down, with reference to the rail,--whether it was on or off the rail. A. It must have been knocked right with the rail. I crawled ahead of it,--tried to get outside of it,--and got ahead of it. Q. How far is the east line of that guard rail, proper, from switch No. 5? A. About twenty or twenty-five feet.”

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: “Q. In switching at night, you always carry a lantern, do you? A. Yes, sir. Q. And, with the aid of that lantern, you are enabled to determine when you come to a frog and switch and guard rail? A. Yes, if a fellow happens to notice. What I mean is, if he is careful, and looks where he is going, the lantern enables him to see that. Q. Mr. Kroener, you say that you were switching there this night of the accident,--in the yards at Van Horn? A. Yes. Q. Now, this work of switching is doing about the same things about the cars and guards as you do when on the road; about the same when you come to switch across from one track to another. At the Van Horn yards, that night, you performed about the same movements that you do in switching your cars on your run? A. Yes. Q. You say, when those detached cars were coming down there, you started to walk down to where...

To continue reading

Request your trial
7 cases
  • McAlinden v. St. Maries Hospital Ass'n
    • United States
    • Idaho Supreme Court
    • 11 d6 Março d6 1916
    ... ... 44; ... Bell v. Globe Lumber Co., 107 La. 725, 31 So. 994; ... Wimber v. Iowa Central Ry. Co., 114 Iowa 551, 87 ... N.W. 505; Kroener v. Chicago M. & St. P. Ry. Co., 88 ... Iowa 16, 55 N.W. 28; Beaton v. City of St. Maries, ... 27 Idaho 638, 151 P. 996; Mosso v. E. H. Stanton ... ...
  • Maloney v. Winston Bros. Co.
    • United States
    • Idaho Supreme Court
    • 9 d1 Maio d1 1910
    ...R. R. v. Singleton, 66 Ga. 252, for fracture of leg, $ 14,833; Lombard v. Railroad, 47 Iowa 494, for broken leg, $ 4,000; Kroener v. Railroad, 88 Iowa 16, 55 N.W. 28, loss of foot, $ 12,000; Slette v. Railroad, 53 Minn. 341, 55 N.W. 137, for broken leg, $ 4,100; Johnson v. Railroad, 67 Minn......
  • Ed. Maloney v. Winston Bros. Company
    • United States
    • Idaho Supreme Court
    • 7 d3 Dezembro d3 1910
    ... ... Cogswell v. West St. & N.E. Electric Ry ... Co., 5 Wash. 46, 31 P. 411; Florida Ry. & Nav. Co ... v. Webster, 25 Fla. 394, 5 So. 714; Kroener v ... Chicago, M. & St. P. Ry. Co., 88 Iowa 16, 55 N.W. 28; ... Missouri P. Ry. Co. v. Dwyer, 36 Kan. 58, ... 12 P. 352; Kennon v. Gilmer, 9 ... ...
  • On Rehearing
    • United States
    • Idaho Supreme Court
    • 7 d3 Dezembro d3 1910
    ... ... Cogswell v. West St. & N.E. Electric Ry. Co., 5 ... Wash. 46, 31 P. 411; Florida Ry. & Nav. Co. v ... Webster, 25 Fla. 394, 5 So. 714; Kroener v. Chicago, ... M. & St. P. Ry. Co., 88 Iowa, 16, 55 N.W. 28; ... Missouri Pac. Ry. Co. v. Dwyer, 36 Kan. 58, 12 P ... 352; Kennon v. Gilmer, 9 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT