Lowe v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 16 October 1893
• Citation: 89 Iowa 420,56 N.W. 519
• Parties: LOWE v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Iowa Supreme Court

89 Iowa 420

56 N.W. 519

LOWE

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Iowa.

Oct. 16, 1893.

Appeal from district court, Osceola county; Scott M. Ladd, Judge.

Action for personal injury. Verdict and judgment for plaintiff. Defendant appeals.Swan, Lawrence & Swan, for appellant.

Argo, McDuffie & Argo, for appellee.

KINNE, J.

1. Plaintiff's claim, as set forth in her petition, is substantially this: That she is the administratrix of the estate of one Channing Lowe, deceased; that defendant was, on and prior to November 14, 1891, operating a line of railroad through the town of Ashton, in this state, at which point it had a main line and certain switches and side tracks; that at that time and place it was frequently the custom and practice of the defendant, when its trains were behind time, and it desired to detach certain of its cars from those in use on main line and place them on side track, to order, direct, and require certain of its servants acting as brakemen to open one of the switches connecting with its main line, and then, while said cars and engine were in motion, to step upon its track, between the cars to be detached, and uncouple them; that when the cars were being uncoupled it was then and there the duty as well as the custom and practice of the defendant and its servants controlling the movement of the engine and cars to move said train backward very slowly, and at a steady and regular rate of speed, and not to increase the rate of speed at which the cars were being moved, and not to “kick” the cars backward until the servant of defendant had signaled the defendant's servants in charge of the engine that he had performed the act of uncoupling the cars, and to “kick” the uncoupled cars backward onto the switch; that on or about November 14, 1891, the defendant employed Channing Lowe as a brakeman, and employed other servants to care for, manage, and control its trains and engines, and instructed Lowe to work under their direction, and to obey their orders, and so he undertook to do; that at Ashton, while in the employ of the defendant, and acting in the line of duty, as aforesaid, Lowe was directed and ordered to open and place the switch at the north end of the side track on west side of main line, and to uncouple from said train while in motion certain cars which defendant had ordered to be placed upon said side tracks; that Lowe, in obedience to said direction and order, opened the switch, and as said train was being slowly and at a regular rate of speed backed over said switch, he, in the exercise of due care and caution, stepped onto the track between the cars for the purpose of uncoupling them; that the servants in charge of said train, without waiting for Lowe to uncouple said cars, or to step off from the track to give said signal, and without giving him time to do so, and without waiting for signal, and without signal, carelessly, negligently, and without warning greatly and suddenly increased the speed of the train; that by reason thereof, and while in the performance of his duty, and while in the exercise of due care and caution, and without negligence on his part, he was struck and killed by defendant's cars. Defendant admits its corporate capacity, and that it was at the time stated operating its railway as alleged, and denies all other allegations. In a second count, defendant avers that the killing of Lowe was not the result of any negligence on its part, or of its servants or employes, but was the result of, and occasioned by, the careless and negligent acts of deceased. That deceased was at the time of the injury directing the movement of the train, and said train was moved and controlled by his direction only, and in no other or different manner. Deceased, with knowledge that the train was in motion, and of what was being done and to be done with the engine and cars, carelessly and negligently went in between the cars when they were in motion, and voluntarily placed himself in a dangerous place, with full knowledge of the danger incurred, whereby he was injured. In a third count it is averred that Lowe had for a long time prior to his death been in the employ of the defendants as a brakeman, and had full knowledge of the manner of doing the work on defendant's road, and of the rules and regulations governing his duties as such brakeman, and of the practice, customs, and manner of doing said work, and remained in such employment without protest or demand for any change of manner of doing the same, and thereby voluntarily assumed the risk and danger incident to said employment. In a fourth count it is alleged that the accident to Lowe was occasioned by his disobedience of the rules and regulations of the defendant company. That said company had on January 1, 1890, made and published rules prohibiting brakemen from going between cars in motion to uncouple them, and that deceased had a copy of said rules, and that by reason of his disobedience thereof he was killed. So much of the rules as are material in this case are as follows: “The attention of switchmen and brakemen and all other employes of the company whose duty it is to couple cars is called to the following rule of the company: ‘Rule 15. Great care must be exercised by all persons when coupling cars. * * * All persons entering into or remaining in the service of the company are warned that the business is hazardous, and that they must assume the ordinary risks attending it. Each employe is expected and required to look after and be responsible for his own safety, as well as to exercise the utmost caution to avoid injury to his fellows, especially in the switching of cars and in all movements of trains. * * * Getting in between cars in motion to uncouple them, and all similar acts, are dangerous, and in violation of duty, and are strictly prohibited. Employes are warned that if they commit them it will be at their own peril and risk.’ ” Plaintiff denied the allegations in the third and fourth counts of the answer, and, further replying, said that, notwithstanding the rules of defendant company, defendant and its officers and servants in charge of its trains have required and directed decedent to perform the services mentioned in the petition, and in the manner therein stated. That at the time plaintiff's intestate received the injuries complained of it was impossible to operate and run defendant's trains in conformity to said rules, and perform the train service required of its servants in operating its trains, which was then known to defendant, and defendant has thereby waived the observance of said rules on part of plaintiff's decedent. That decedent received his orders to set out on the side track the car mentioned in the petition from an officer of the defendant company by means of a telegram received by the conductor in charge of the train, and which was read in the presence and hearing of the deceased.

2. It is said that the court erred in not stating the issues fully and correctly to the jury. It is contended that the court ignored the second and third defenses pleaded in the answer. We do not think the claim is well founded. True, the court might have stated the defenses more fully, and it would have been proper to have done so. The court told the jury that defendant claimed that the negligence of deceased caused the injury, but did not refer to the facts pleaded upon which said claim of negligence was based. We do not think that the failure of the court to be more specific worked any prejudice to the defendant.

3. Evidence was admitted, over defendant's objection, to the effect that it was the habit or custom of brakemen on defendant's road to go onto the track and between the cars when in motion for the purpose of coupling and uncoupling them. It is urged that the evidence was immaterial, incompetent, and that there was no such issue. The evidence was admissible, as tending to show a waiver of rule 15, which prohibited brakemen from going between the moving cars to couple or uncouple. The contention is that the evidence did not as a matter of law establish a waiver of the rule; that, as deceased had a copy of the rule, he was in duty bound to do the work in accordance therewith; and the fact that other employes disobeyed it was no excuse for plaintiff's decedent to do so. That railroad companies have the right to make and promulgate proper and reasonable rules for the government of their employes in the transaction of the business intrusted to them is well settled, and it is likely there might be cases where they would be derelict in duty if they failed to establish such rules. Deeds v. Railroad Co., 74 Iowa, 154, 37 N. W. Rep. 124;Cooper v. Railroad Co., 44 Iowa, 138;O'Neill v. Railroad Co., 45 Iowa, 547; Railroad Co. v. Powers, 74 Ill. 344;Lockwood v. Railroad Co., 55 Wis. 50, 12 N. W. Rep. 401;Reed v. Railroad Co., 72 Iowa, 166, 33 N. W. Rep. 451;Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. Rep. 380; Sedgwick v. Railroad Co., 73 Iowa, 158, 34 N. W. Rep. 790; Beach, Cont. Neg. § 141. A rule prohibiting the coupling and uncoupling of cars by going in between them while they are in motion is reasonable, and, if enforced, is calculated to protect the limbs and lives of those whose duty it is to perform the always dangerous work of coupling or uncoupling cars. But we cannot doubt that such a rule may, by the consent of the parties, be waived or abrogated. Let it be conceded that by receiving a copy of the rules and entering the company's service the deceased became bound by contract, and under obligations to obey the rules given him, nevertheless the parties to the contract were competent to waive the performance of any part of it. Such a waiver may arise from constant violations of the rule or contract, acquiesced in by the defendant company. There is a conflict in the cases, some of them holding that a usage or custom cannot be shown as against a rule or contract like that...