Meloy v. Chi. & N. W. Ry. Co.
| Decision Date | 29 May 1889 |
| Citation | 77 Iowa 743,42 N.W. 563 |
| Court | Iowa Supreme Court |
| Parties | MELOY v. CHICAGO & N. W. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from superior court of Cedar Rapids; JOHN T. STONEMAN, Judge.
Action to recover damages for personal injuries sustained by plaintiff, for which defendant is alleged to be responsible. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.Hubbard, Clark & Dawley, for appellant.
Ward & Harman and Mills & Keeler, for appellee.
In the summer of the year 1884 plaintiff was in the employment of defendant, and was engaged as a civil engineer in superintending the laying of track on a new line of railway which defendant was then constructing from Belle Plaine to What Cheer. He was not required to see that the track was kept in good condition after it was laid. On the 3d day of August of the year named the track had been laid from Belle Plaine to a point about 35 miles south. On that day plaintiff, who was in Belle Plaine to visit his family, was ordered to go to the front with a wrecking train, which was going down to assist in replacing on the track a derailed engine. The train consisted of an engine, which was run backwards, pushing the tender and pulling the cars; a wrecking-car, with derrick, next to the engine; an old way-car, fitted up and used as a tool-car, next to the wrecking-car; three flat-cars loaded with steel rails; three loaded with ties; and at the rear end a box-car, fitted up and used as a way-car. The plaintiff, with other employés of defendant, rode in the tool-car. At a point about 21 miles south of Belle Plaine the engine, derrick-car, tool-car, and forward trucks of the first car of rails left the track, and the tool-car was badly broken. At the moment of the accident plaintiff was standing on a platform of the tool-car, whither he had gone, as he states, for the purpose of jumping from the train, under the belief that an accident was imminent. He was caught between two cars in such a manner that his left leg was crushed, making amputation necessary. Other injuries were also received. The evidence on the part of plaintiff tends to show that the track where the accident occurred was in bad condition at that time; that it was laid through a deep cut, over wet, soft earth; that it had settled unevenly, and was out of line; that the condition had been made worse by a storm of rain the night before; and that at the time of the accident the train was running from 12 to 17 miles an hour. The way-car did not leave the track. Plaintiff charges that the train was negligently run at too high a rate of speed over a track known to defendant to be in a dangerous condition, by an inexperienced and incompetent engineer; and that he did not contribute to the injuries of which he complains. The jury found specially that defendant was negligent in maintaining and repairing the road-bed and track at the time and place of the accident; that the train in question was “running at a dangerous and negligent rate of speed, considering the condition of the road-bed at that place and time;” and that plaintiff was not guilty of contributory negligence. The amount of the verdict and judgment was $10,000. An opinion was filed in this cause on a former submission, (37 N. W. Rep. 335,) but a rehearing was granted on the petition of appellant, and the cause again submitted.
1. It is contended by appellant that the risks incident to riding over a new, partially completed road-bed and unballasted track were necessarily contemplated in the employment of plaintiff; that the accident in question was a risk of that kind; and therefore that he is not entitled to recover in this action. But plaintiff only consented to incur such risks as were incident to the operation of trains upon such a track in a reasonably prudent and careful manner. He did not assume risks which were the result of running trains at an unreasonably high rate of speed over track in a bad and dangerous condition. Defendant was chargeable with knowledge of the condition of its track at the place of the accident. It knew that it was laid over wet and yielding earth; that proper drains had not been constructed to carry off the rainfalls and the water which came from the banks, and that the storm of the night before had aggravated the bad condition of the road-bed, and had made greater caution in running trains over it necessary. There was conflict in the evidence as to the condition of the track and the rate of speed at which the train in question was run, but there was evidence tending to support the special findings of the jury that defendant was negligent in not keeping the road-bed and track in better condition, and that it was negligent in the matter of running the train. Plaintiff did not assume any risk resulting from such negligence. He had, it is true, superintended the laying of that portion of the track in controversy, but it was laid several weeks before the accident occurred, and plaintiff's responsibility, therefore, had ceased. It was then in charge of a road-master.
2. Appellant complains of the refusal of the court below to allow it to prove that similar trains had been run at the same rate of speed over the same track on the same day, without any appearance of danger. Appellant was permitted to prove the condition of the track at the time in question, and for some time before. The fact that other trains were run over it just before the accident at the same rate of speed would not justify a negligent and improper running of the train in question. The condition of the road-bed was such that the passing over it of loaded trains made it more dangerous. It is...
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