Kuhns v. Wis., I.&N. Ry. Co.

• Decision Date: 01 March 1887
• Parties: KUHNS, ADM'R, v. WISCONSIN, I. & N. RY. CO.
• Court: Iowa Supreme Court

70 Iowa 561

31 N.W. 868

KUHNS, ADM'R,

v.WISCONSIN, I. & N. RY. CO.¹

Supreme Court of Iowa.

March 1, 1887.

Appeal from circuit court, Black Hawk county.

The plaintiff's intestate was in the employ of the defendant, as plaintiff claims, as a fireman on a locomotive, and he was killed in an accident which occurred on the railway in October, 1884. Trial by jury. Judgment for the plaintiff, and the defendant appeals.Hubbard, Clark & Dawley, for appellant.

Horace Boies and Jas. Husted, for appellee.

SEEVERS, J.

A recovery is asked in the petition on the ground of the negligence of the defendant. The negligence, as stated in the petition, is (1) that the track was not properly ballasted; (2) that the rails were not properly spiked to the ties; (3) that the track was rough and uneven; (4) that defendant failed to furnish a suitable engineer; (5) that defendant failed to furnish appliances for turning the engine; and (6) that it was running backward; and by reason of the circumstances above stated the engine was thrown from the track, whereby the deceased was injured and subsequently died. The material facts are that the train consisted of the engine, tender, way car, and a passenger coach, and was making the trip from Waterloo to Hudson, a distance of nine miles. The tender was in front of the engine, which was running backward. One of the flanges of one of the wheels of the tender broke, the tender and engine left the track, and ran over the ties for the distance of about 120 feet, when the engine fell down an embankment on one side, and the tender the other, and thereby the deceased was injured. The way car remained on the track. The place where the tender left the track was definitely located by marks on the top of the rail. At that point the track did not spread, and remained in the same condition it was before the accident. The track was straight. The foregoing are conceded facts. There was evidence tending to show the track was uneven, and out of line, the road not properly ballasted, nor rails sufficiently spiked; but the extent of these deficiencies, and their effect in causing the accident, was controverted. That the road was new, and had been only recently constructed, was a conceded fact.

1. The deceased was an employe, and therefore the fact that there was an accident, and he was injured, is not sufficient to enable the plaintiff to recover, or cast the burden on the defendant to show there was negligence. The plaintiff therefore properly assumed the burden of establishing negligence on the part of the defendant, and he introduced evidence tending to show that the track was not properly spiked; how other roads were usually spiked; and that five consecutive ties, about 100 feet from the place where the tender left the track, had not been spiked. The object in spiking the track we understand to be to prevent it from spreading, and to keep the rails in place and line. The spikes are so driven into the ties as to effect this object. The defendant objected to the evidence, but the objection was overruled. We think it should have been sustained for the reason that the failure to spike could not have contributed to the accident. This is apparent because of the fact that the track did not spread at the place where the tender left the track. It is immaterial whether it was spiked at other places or not, or at that place, unless such failure caused or contributed to the accident. Ruggles v. Town of Nevada, 63 Iowa, 185, 18 N. W. Rep. 866.

2. Evidence was introduced by the plaintiff which had a possible tendency to show that the train was running at a dangerous rate of speed. An objection to this evidence was overruled. It should have been sustained because there was no such issue. No such ground of negligence is stated in the petition.

3. The defendant introduced evidence tending to show the track at the time of the trial was in the same condition it was at the time of the accident, and asked an expert when on the stand as a witness, who had seen the track just preceding the trial, in substance, if the track was in the same condition at the time of the accident as when he saw it, whether it would be more dangerous to run the engine and tender backward than forward. An objection to this question was sustained, and in so ruling the court erred. If the track was in the same condition at both times, it seems to us there can be no doubt that the ruling was erroneous. Whether it was in that condition was for the jury to say.

4. The plaintiff asked an expert the following question: “Suppose the fact to be that it [the track] was so badly out of line that it was plainly visible to the eye in looking along the track, what do you say then as to whether the danger would be increased by running the engine backward over the track at a high rate of speed?” To this and similar questions the defendant objected, but the objections were overruled. We think they should have been...