Merryman v. Chi., R. I. & P. Ry. Co

• Decision Date: 26 May 1892
• Citation: 52 N.W. 545,85 Iowa 634
• Parties: MERRYMAN v. CHICAGO, R. I. & P. RY. CO
• Court: Iowa Supreme Court

85 Iowa 634

52 N.W. 545

MERRYMAN

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

Supreme Court of Iowa.

May 26, 1892.

Appeal from district court, Jasper county; D. RYAN, Judge.

Action to recover damages for personal injuries sustained by plaintiff, and alleged to have been caused by negligence on the part of defendant. When the evidence for plaintiff had been fully submitted, the court sustained a motion to instruct the jury to return a verdict for defendant. A verdict was returned as directed, and judgment was entered in favor of defendant for costs. The plaintiff appeals.Alanson Clark, for appellant.

Thomas S. Wright and H. S. Winslow, for appellee.

ROBINSON, C. J.

In March, 1889, defendant maintained a turntable on its grounds at the town of Kellogg. The turntable was about 45 feet in length, weighed from 10 to 15 tons, and rested on a central pivot. Under each end was a wheel so placed that it revolved on a circular track below, if brought in contact with it when the table was in motion. The upper surface of the rails on the table was about four feet above the circular track. When the table was level, each wheel was about one and one half inches above that track, but a moderate weight on either end would depress it until the wheel rested on the track. The table when not fastened was easily made to revolve. When in position for use, each end was opposite an embankment on which was a track over which the locomotive engines were moved to and from the table. The only means of fastening the table were a pair of iron clamps. They were used by placing one, to which a loop was attached, on one side of the end of a rail on the table, and the corresponding end of a rail on the embankment, in such a manner that the loop passed between the ends, projecting on the opposite side of the rails. The other clamp, called the “pin,” was then passed along that side, through the loop, and the fastening was thus made complete. The pin weighed several pounds, but could be removed from the loop easily, and when that was done the fastening was unloosed.

The town of Kellogg contained nearly 1,000 inhabitants, and was chiefly northeast of the depot, and the table was four or five hundred feet southwest of it. Southwest of the table was a stream of water and a dam. A few houses of the town were south of the main line of defendant, but none of them were in the immediate vicinity of the table. A public highway was near it. The stream afforded fishing in summer, and skating in winter, and there was a grove and had been ball grounds in that locality; and it was the custom for boys and others, in going from the town to the stream, grove, and ball grounds, and in returning, to pass within a distance of from 30 to 100 feet of the table; and it was a common practice for boys to play on and about the table, although it does not appear that defendant ever encouraged or approved the practice. In the month named, four boys, of whom the oldest was about 11 years of age, went to the table, pulled out the pin, and commenced to turn the table. They were soon joined by plaintiff and others, until the number of boys present was 12 or more, and spent some time in playing with the table, some of the boys pushing, thus causing it to turn, while others rode upon it. Plaintiff pushed for a time, and while the table was in rapid motion climbed upon it, and laid down with his head towards the center and his legs projecting over the end. Immediately one of his legs was caught between the...