McMarshall v. The Chicago, Rock Island & Pacific R. Co.
Decision Date | 05 June 1890 |
Citation | 45 N.W. 1065,80 Iowa 757 |
Parties | MCMARSHALL v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY |
Court | Iowa Supreme Court |
Decided October, 1890.
Appeal from Lee District Court.--HON. J. M. CASEY, Judge.
ACTION to recover for personal injuries received by plaintiff's intestate, resulting in his death, while in the employment of defendant in the operation of its railroad. The injuries were caused by the negligence of defendant's employes. There was a judgment upon a verdict for plaintiff. Defendant appeals.
AFFIRMED.
Thos S. Wright and Craig, McCrary & Craig, for appellant.
Dodge & Dodge, A. H. Stutsman and Jas. C. Davis, for appellee.
Plaintiff's intestate, A. L. Kern, was in his lifetime in the employment of the St. Louis, Keokuk and Northwestern Railroad Company as a train conductor. He was in charge of a train engaged in moving ice from the canal above the defendant's railway station at Keokuk to an icehouse below. At the time of the accident he detached the engine from the cars in his train, and coupled it "head on" to some box cars. The defendant had a track a few paces south of the track of the St. Louis, Keokuk and Northwestern railroad, upon which the intestate stepped for the purpose of giving or receiving signals from the engineer, or the person in charge of the engine. Defendant's switch engine, which was at the time approaching, struck the intestate, causing his death. The tracks upon which the intestate's train was stopped, and the one upon which he was struck by defendant's engine, were seven or eight feet apart, and were used by the railroad company, whose road entered Keokuk, for the purpose of switching, and the locality is called the "Union Railway Yards" of the city. The petition sets out the cause of action in the following language, which we quote, for the reason that certain questions discussed by counsel arise upon the allegations of the petition. After stating that defendant sues as administrator of Kern, the petition proceeds to allege The answer, in general language, denies all the allegations of the petition.
The first objection argued by defendant's counsel is directed at the eighth instruction given by the court to the jury which is in this language: It is insisted that this instruction is erroneous, in that it submits to the jury two questions of negligence, thus stated by defendant's counsel: "First, whether defendant's employes were on the lookout for persons on the track; and, second, whether defendant's engine was in the control of an incompetent person." The error of the instruction, in counsel's view, is that the petition is specific in its allegations of negligence, and, as there were no allegations as to the facts suggested by these questions, the inquiries should not have been submitted to the jury by the instruction; in other words, as there were no specific allegations of negligence to the effect that defendant's employes "were not on the lookout," and the engine was not in the control of an incompetent person. As to the first part of the objection, the petition alleges that defendant's employes "failed to see the intestate in time to give any alarm signal." Now, if the employes were not on the lookout, they surely failed to see deceased. A failure to "look out" was, in effect, a failure to see deceased. If the employes failed to look out, they negligently failed to see the deceased. It will be observed that the court quite correctly directed the jury as to the duty of the defendant's employes, at the place where the accident happened, "to look out" for persons on the track. The negligence alleged in the petition is a failure to see intestate. "A failure to see" would follow "a failure to look out." Hence the negligence set out in the petition and the...
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