Mays v. Chi., R.I. & P.R. Co.

• Decision Date: 04 June 1884
• Citation: 63 Iowa 562,19 N.W. 680
• Court: Iowa Supreme Court
• Parties: MAYS v. CHICAGO, R. I. & P. R. CO.

63 Iowa 562

19 N.W. 680

MAYS

v.CHICAGO, R. I. & P. R. CO.

Supreme Court of Iowa.

Filed June 4, 1884.

Appeal from Pottawattamie district court. Opinion on rehearing. See S. C. 14 N. W. REP. 340.

*680ROTHROCK, C. J.

After the foregoing opinion was filed the defendants presented a petition for rehearing, and after that an additional argument in support thereof, and we have again examined the whole record in the case, and upon such examination we adhere to our former conclusion: that the question of waiver is a defense which, if relied upon, should be pleaded. We desire to say, however, that our later examination of the case, in the light of the reargument, has led us to believe that the fourth point of the opinion should be modified. It is there said that the question as to “the knowledge of the defects possessed by intestate, and his ability in the exercise of ordinary diligence to acquire knowledge thereof, are questions of fact, to be determined upon the testimony submitted in the case.” We think this rule may very properly be applied to defects or dangers which are not open and obvious to every one serving in the capacity of an employe. But in our opinion it was erroneous to apply it to the facts of this case. The intestate had been at work for six weeks over this track. He must be presumed to have known that the space between the rails was not blocked, and that the openings between guard-rails and in frogs are dangerous to brakemen while engaged in coupling or uncoupling cars. This is a fact which is as patent as that a hole in the track between the rails is dangerous.

Again, it appears to be assumed in the opinion that the defendant employed the intestate as an inexperienced man. This assumption is not warranted by the facts in the case. There is no evidence that the defendant had any knowledge that the deceased was inexperienced. On the contrary, as the intestate entered the service of the defendant in a certain capacity, it is to be presumed that he contracted that he had the experience to properly perform the duties of his position, and that he knew, at least, the obvious dangers attending the employment in which he was engaged.

With these modifications, the former opinion is adhered to.