McDermott v. Iowa Falls & S. C. Ry. Co.

• Decision Date: 24 January 1891
• Citation: 47 N.W. 1037
• Court: Iowa Supreme Court
• Parties: MCDERMOTT v. IOWA FALLS & S. C. RY. CO.

47 N.W. 1037

MCDERMOTT

v.IOWA FALLS & S. C. RY. CO.

Supreme Court of Iowa.

Jan. 24, 1891.

Appeal from district court, Hardin county; D. R. HINDMAN, Judge.

Action to recover damages for personal injuries resulting in the death of plaintiff's intestate. There was a judgment on a verdict for plaintiff. Defendant appeals.John F. Duncombe and W. J. Knight, for appellant.

Burns & Sullivan, Rauck & Wade, and Albrook & Harden, for appellee.

BECK, C. J.

1. The facts of this case are very like those involved in the common run of actions against railroad companies for personal injuries resulting in the death of an employe while engaged in operating a train, caused by negligence of another employe. But the manner of the presentation of the cause to this court imposes unnecessary and vexatious labor upon this court. The abstract has been prepared in disregard of the rules and the uniform practice prevailing in this court, intended to secure the presentation of questions of law and fact in a clear and open way, thus relieving the judges of much labor, and aiding the court in the attainment of the ends of justice. The abstract presents the various parts of the record without regard to chronological order, and without any seeming purpose to aid the ready discovery of facts of controlling importance in the disposition of the case. The following statement supports the correctness of our remarks: The pleadings are first set out in the abstract, then follow the instructions asked by defendant and refused, with proper exceptions shown. Next come the instructions given to the jury, without anything showing exceptions thereto, which are found 170 pages on in the abstract, following the certificate of the judge, attached to the translation of the short-hand notes of the evidence. After this come motions for a new trial. The evidence is largely presented without abstracting; the questions and answers being unnecessarily set out as written in the translation of the short-hand notes of the reporter. If it be necessary to fully present the evidence and its weight and effect, upon matters at issue, the question and answers may be set out in the language of the record, but this was not necessary in the case before us. For the reason that the transcript is printed as just pointed out, and not an abstract thereof, as required by the rules of practice of this court, costs could not be taxed therefor in favor of defendant, even should it be successful in this appeal. Nowhere do counsel allege or show in the abstract that it contains all the evidence, but the so-called “abstract” contains certificates affixed to the bill of exceptions and the short-hand reporter's translation of his notes, to the effect that the bill of exceptionsand reporter's translation contain all the evidence. This we have often held is not sufficient. This fatal defect, however, is cured by an amended abstract, filed by the other party, which it is averred contains, with the original abstract, all the records and evidence in the case. We are sorry to say that the amended abstract filed by plaintiff follows the example of the original abstract in setting out the evidence in full, instead of an abstract thereof. Ten only of the 63 pages of amended abstract will be taxed as costs. It is proper to remark that hereafter, for such violation of our rules by printing the record in full instead of an abstract thereof, we will, on our own motion, if in our judgment the case demands it, strike such printed records from the files, and treat the case as standing without an abstract subject to dismissal. Seventy-seven errors are assigned and 58 are argued separately. The other 19 are argued with other points. We have considered all of these alleged errors, but will not attempt to notice all of them separately, as they do not demand such attention. We may premise the observation that, while brevity will be attempted, we shall endeavor to present in an intelligible form each point we separately notice and our conclusions thereon.

2. The plaintiff's intestate, a young man of less than 21 years of age at the time of his death, was employed as a brakeman upon a train operated upon defendant's railroad. In the train were one or more coal-cars having end gates supported in their places by hinges, which permitted them to be laid down on the floor of the car when it was required or proper to do so. In passing over one of these cars in the discharge of his duty, being required to set the brakes, it was necessary for him to pass over the end gate. He attempted to do so, but, as it lay at an inclination towards the end of the car of 20 or 30 degrees, and was covered with snow and ice, he slipped and fell between the coalcar and the one next to it, and was killed. The petition alleges that he was killed by the “caboose,” which, being lower, with less space between it and the surface of the track, caught his body after the other cars had passed without touching it, and crushed it. It is alleged that defendant was negligent in permitting coal, snow, and ice to accumulate in the car, and the end gate was negligently dropped upon the coal, snow, and ice, which caused it to stand at an angle of 20 or 30 degrees, and that it was negligently permitted to remain in that position for a long time before it was put in the train, and was negligently permitted to remain after the car was put in the train, by reason whereof ice and snow accumulated upon the end gate, causing it to become slippery and dangerous. It is alleged that this car was negligently put in the train without examination and effort to remove the elements of danger connected with the end gate. As another ground for the charge of negligence it is alleged that defendant's employes negligently failed to stop the train, as they could have done in the exercise of due care, before the “caboose” reached decedent, after he had fallen between the cars. We shall proceed to consider the objections made by counsel to the judgment of the court below.

3. An instruction asked by defendant and refused is to the effect that defendant is not liable, for the reason that it is not shown that the end gate was defective, and could not have been raised and secured in that position by deceased. But this...