Miller v. Ill. Cent. R. Co.

• Decision Date: 16 January 1894
• Citation: 89 Iowa 567,57 N.W. 418
• Parties: MILLER v. ILLINOIS CENT. R. CO.
• Court: Iowa Supreme Court

89 Iowa 567

57 N.W. 418

MILLER

v.ILLINOIS CENT. R. CO.

Supreme Court of Iowa.

Jan. 16, 1894.

Appeal from district court, Dubuque county; John J. Ney, Judge.

The plaintiff was a brakeman on one of the defendant's railroad trains. He claims damages for a personal injury which he alleges he received by falling into what is called a “manhole” on the top of the tender of an engine. His right to recover damages is based on the claim that the defendant and its agents and employes were negligent in not properly adjusting the cover of said manhole, and that the lid or covering thereof was constructed in an unsafe and defective manner, and that the rim or top of said manhole was bent and out of repair. The answer was a general denial, and an averment that the injury, if any, was caused by the want of care and caution of plaintiff, which directly contributed to the result. There was a trial by jury, and verdict and judgment for the plaintiff. Defendant appeals.Boies, Couch & Boies and W. J. Knight, for appellant.

Powers, Lacy & Brown, for appellee.

ROTHROCK, J.

1. It appears from the evidence that the plaintiff was what is known as “head brakeman” on a freight train of the defendant, and, just before he received the injury of which he complains, he was riding in the cab of the engine. No question is made as to that being the proper place for him to ride when not employed at the brakes. The alleged injury was received in the night, as the train approached a station called “Delaware Center,” on its trip westward from the city of Dubuque. The plaintiff left his place in the cab, and went out over the tender, to get on the top of the cars, to attend to his duties while the train was approaching the station. The manhole is an opening in the tank part of the tender, and near the back part of it, into which the water spouts, at water stations, are placed to receive water in the tank, to make steam for the engine. This opening or hole is in the center of the tank; that is, it is equidistant from the sides of the tank. In crossing over the center of the tender and tank, the plaintiff stepped on the lid over the manhole, and, when he placed his weight on the lid, it did not sustain him, but slipped away, and turned up, and his leg went down, and was injured. This is the substance of the plaintiff's claim, as detailed by him in his testimony as a witness on the trial. We have thus briefly stated the grounds upon which the recovery was sought. If the plaintiff was in the line of his duty in taking the direction he did to get on top of the train, and in stepping on the covering of the manhole, and was not negligent in failing to discover that it was defective or out of position, he was entitled to recover, if the manhole was improperly or negligently covered, either by reason of the lid being improperly placed over the manhole, or because of the manhole being improperly constructed, or out of repair and in an unsafe condition. It would appear from this statement that the issues in the case were plain and unambiguous, and a review of the questions involved upon an appeal ought not to be attended with difficulty. But a great many questions were raised during the trial. Many of these questions will be disposed of in a general way, without special mention of them. Such as we think require particular consideration will be set out.

There was evidence introduced by the plaintiff to the effect that the manhole in question and cover thereof were constructed in a different manner from those on other engines. This evidence was objected to by the defendant, and complaint is made because the objection was overruled. Whatever may be said of the competency of this evidence, it was no prejudice, because the court instructed the jury as to the construction of the engine as follows: “There is no contention on the part of the plaintiff in this case that the engine and tender are not of good make and approved pattern, and evidence of these qualities was excluded by the court when offered by the defendant.” And the court further instructed the jury as follows: “It is contended by the plaintiff that the fireman on the engine was negligent in not placing the covering back on the manhole when he took water, or that the company was negligent in not keeping the rim of the manhole in proper condition to receive the top, and keep it in place by means of arms or brackets that fitted inside the rim of the manhole and kept the cap in place.” These instructions embraced all there was in the case when it was submitted to the jury. There was no question as to the proper construction of the manhole and the cover thereof. It is...