Mayes v. Chicago, Rock Island & Pacific Railway Co.
Citation | 14 N.W. 340,63 Iowa 562 |
Parties | MAYES, ADM'R, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO |
Decision Date | 04 June 1884 |
Court | United States State Supreme Court of Iowa |
Appeal from Pottawattamie District Court.
ACTION to recover for personal injuries to plaintiff's intestate, resulting in his death. Upon a trial to a jury, a verdict for defendant was rendered in pursuance of instructions directing the jury so to find. Plaintiff appeals.
REVERSED.
M. P Brewer, for appellant.
Wright & Baldwin and Wright, Cummins & Wright, for appellee.
OPINION
I.
The petition alleges that William Baker, plaintiff's intestate, while in the employment of defendant as a "switchman or brakesman," was run over by a train of cars, receiving injuries which resulted in almost instant death. It is alleged that the injuries were caused by the negligence of defendant in the construction of its railroad by failing to place blocks between the rails and the guard rails at the switches, and that, in the absence of such blocks, the foot of the intestate, while he was in the discharge of his duty under the employment of defendant, was caught between the guard-rail and the rail of the track, and was held in a position so that an approaching train ran over him. It is alleged that intestate was inexperienced in matters pertaining to the operation of railroads, and had no knowledge of the dangerous character of the tracks, and of the dangers to which he was exposed by reason of the absence of the blocks between the rails and the guard-rails. The answer denies all allegations of the petition. Other averments of the petition need not be here recited.
The evidence tended to show that the intestate came to his death in the manner alleged in the petition; that he had been employed for about six weeks as a night switchman in defendant's station-yard at Council Bluffs; that he was not twenty-one years old at the time of his death; and that he lived upon a farm, and had no experience in operating railroads, prior to his employment by defendant.
After the plaintiff had submitted evidence in his behalf, counsel for the defendant moved the court to direct the jury to return a verdict for defendant, on the ground that plaintiff had failed to sustain the allegations of his petition by sufficient evidence. Thereupon the district court announced its decision in the following opinion:
Counsel for plaintiff insists that, if it be conceded that the intestate, by remaining in the employment of defendant without objection after discovering the dangers to which he was exposed by reason of the absence of the block between the rails, waived his right to recover for the negligence of defendant, such waiver should have been pleaded as a defense in the action; and, as no such defense was pleaded, the court erred in deciding the case thereon for defendant.
The waiver in question is...
To continue reading
Request your trial-
Depuy v. Chicago, Rock Island & Pacific Railway Company
... ... 293, 50 Am ... Rep. 798; Berger v. Railroad, 39 Minn. 78, 38 N.W ... 814; Railroad v. Seley, 152 U.S. 145, 14 S.Ct. 530, ... 38 L.Ed. 391; Appel. v. Railroad, 111 N.Y. 550, 19 ... N.E. 93; Gillin v. Railroad, 93 Me. 86, 44 A. 361; ... Wood v. Locke, 147 Mass. 604, 18 N.E. 578; ... Mayes, Admr., v. Railroad, 63 Iowa 563, 14 N.W. 340, ... 19 N.W. 680; Myers v. Railroad, 95 F. 407, 37 C. C ... A. 138; Brossman v. Railroad, 113 Pa. 496, 6 A. 226, ... 57 Am. Rep. 479; Smith v. Railroad, 42 Minn. 87, 43 ... N.W. 968; Devitt v. Railroad, 50 Mo. 305; ... Packing Co. v. Marcan, 45 C ... ...