Magee v. Chi. & N. W. Ry. Co.

• Decision Date: 07 February 1891
• Court: Iowa Supreme Court
• Parties: MAGEE v. CHICAGO & N. W. RY. CO.

82 Iowa 249

48 N.W. 92

MAGEE

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

Feb. 7, 1891.

Appeal from district court, Mahaska county; J. K. JOHNSON, Judge.

Plaintiff brings this action as assignee of a claim from T. G. Klepper, Jr., for damages sustained by Klepper because of personal injuries received while in the employ of the defendant, alleged to have been caused by the negligence of the defendant, and without fault or negligence on the part of said Klepper. The defendant answered, denying generally, and the case was tried by a jury, and a verdict and judgment rendered in favor of the plaintiff for $10,000. Defendant appeals.Hoabard & Dawley, for appellant.

Lafferty & Kissick and W. H. Seevers, for appellee.

GIVEN, J.

1. The questions presented in the record may be resolved into the inquiry whether the evidence supports the verdict; or, in other words, whether there is sufficient evidence of negligence on the part of defendant and of care on the part of Klepper to warrant the finding of the jury. There is also some question as to the measure and amount of damage. The following will be a sufficient statement of the facts for a correct understanding of the questions discussed: On and for two months prior to October 18, 1888, T. G. Klepper, Jr., then aged 22 years, was in the employ of defendant as a brakeman on freight trains, which service was the extent of his experience in railroad work. For about two months prior to October 18, 1888, he was serving as front brakeman on freight trains running between Belle Plaine east and Boone west, having run into Boone on train No. 19 three or four times. On that date he arrived on train No. 19, from the east, at Boone, about 10 o'clock at night, in the caboose to which train passengers were being carried. The track upon which cabooses stood when not in use in the defendant's yard was three-fourths of a mile east of the station-house. Freight trains from the east stopped in this yard; and, if passengers were being carried, it was the duty of the crew in charge of the switch-engine to attach it to the rear of the caboose and push it to the station-house, to allow the passengers to alight, but, if there were no passengers, the caboose was side-tracked without being taken to the station. After the passengers were landed the caboose was always moved east and side-tracked, unless the work required that it should first be moved west,--a necessity which only arose occasionally. On the night of the 18th, there being passengers to land, the switch-engine, with one or two common open-work stock-cars attached in the rear, was coupled to the rear of the caboose, and the cars thus attached pushed to the station. After the passengers had landed, the engine bell was rung, and the engine and cars started west for the purpose of taking coal at a place west of the station, and of leaving the stock-cars at the chute before side-tracking the caboose. It does not appear whether the chute was west of the station or not. Upon arriving in the east yard, Klepper, after detaching the engine from his train, and setting the switch to the round-house, got upon the caboose then being moved to the depot. While the caboose was being moved to and standing at the depot he was engaged in washing, changing some of his clothing, and ridding up the car, and putting out the lights, including his own lantern, which he properly left in the car. Some question is made in the testimony whether Klepper's duties did not end at the yard, but, as no such claim is made in argument, we take it as unquestioned that he was in the line of his duty in remaining on the car and doing what he did in it. Having done these things, he proceeded at once to leave the car. He went onto the rear or west platform, locked the door, and attempted to alight upon the station platform on the south side of the car. After locking the door he turned south, took hold of the handle on the south-west corner of the car with his left hand, his face towards the east, and stepped from the car towards the east. In consequence of the car then moving westward he fell upon the platform, striking upon his head, so as to render him insensible, rolled between the platform and the cars, and his right hand was so crushed by the wheels as to render amputation above the wrist necessary. The night was dark, and a light rain prevailed at the time of the accident. At that time there was an electric light burning in front of the hotel in the building about 100 feet east from where Klepper fell. There were two head-lights on the engine throwing light east and west. A switchman was standing on the foot-board on the south side of the engine, facing west, with a lighted lantern in his hand. Two men with lighted lanterns were upon the car platform from which Klepper stepped. A light was burning at the water-closet west of the depot building, and several colored switch-lights, about one block west, were in view from the rear of the car. Each witness does not testify to the presence of all these lights. Some testify to the presence of all these lights, some testify to the presence of part, and some to the presence of others; but no one contradicts another as to the presence of...