Miller v. Minn. & N. W. Ry. Co.

• Decision Date: 06 September 1888
• Citation: 76 Iowa 655,39 N.W. 188
• Parties: MILLER v. MINNESOTA & N. W. RY. CO. ET AL.
• Court: Iowa Supreme Court

76 Iowa 655

39 N.W. 188

MILLER

v.MINNESOTA & N. W. RY. CO. ET AL.

Supreme Court of Iowa.

September 6, 1888.

Appeal from district court, Dubuque county; C. F. COUCH, Judge.

Action by Elizabeth Miller, administratrix of Joseph Miller, against Minnesota & Northwestern Railway Company, Dubuque & Northwestern Railway Company, and Minnesota Loan & Debenture Company, to recover damages for injuries to plaintiff's intestate, which resulted in his death. The injury was caused by a construction train upon which the deceased was riding, and which, it is alleged, was so negligently operated that it spread the rails, left the track, and partially turned over, and in consequence thereof Miller was killed. There was a trial by jury, and a verdict and judgment for plaintiff against Minnesota & Northwestern Railway Company, from which it appeals, and judgment for defendants, Dubuque & Northwestern Railway Company and Minnesota Loan & Debenture Company, on motion, from which plaintiff appeals.Fouke & Lyon and Lusk & Bunn, for appellant Minnesota & Northwestern Railway Company.

Henderson, Hurd, Daniels & Kiesel, for appellee, Miller.

ROTHROCK, J., ( after stating the facts substantially as above.)

The train by which the deceased was killed was a track-layers' construction train. The road was unfinished at the place of the accident. The rails were not spiked to all of the ties; and as the train, which consisted of cars heavily loaded with steel rails and other construction materials, was being backed to the end of the track, the rails in the track spread, the train was derailed, and Miller, who was riding on one of the cars loaded with rails, was killed. A material question in the case is, was the defendant in any event liable in damages for the alleged negligence claimed to be the cause of the casualty? The question arises upon a contract between the defendant company and a partnership known as Harris & Co., which contract is as follows:

“ST. PAUL, MINN., July 9, 1886.

A. B. Stickney, Esq., President Minnesota & Northwestern Railroad Company, St. Paul, Minnesota--DEAR SIR: The undersigned hereby propose to lay as much track as you may require on the Dubuque & Northwestern Railway, from the end of the present track near Durango, westward, commencing about the 20th of August next, and laying at the rate of not less than thirty-five (35) miles per month. Also to lay what track you may require on the line of the Minnesota & Northwestern Railroad, between Chicago and the junction with the Illinois Central Railroad near Freeport, commencing immediately after completing the work on the Dubuque & Northwestern Railway, above specified, at the rate of not less than thirty-five (35) miles per month, to lay such track in good workmanlike manner at sub grade, and to handle all material, including loading and unloading rails and ties that are delivered during the time we are laying track, at and for the sum of two hundred and twenty-five ($225) dollars per mile, with an extra allowance of twenty ($20) dollars for each split switch and frog, and fifteen ($15) dollars for each stub switch and frog. You to furnish all motive power and cars and operate the construction trains; we to furnish all tools and machinery and labor necessary to lay said track. This price to cover all royalty for the use of machines. Payments to be made on the 15th day of each calendar month for all work done during the previous month, reserving ten per cent. (10 per cent.) until all of said work is completed.

HARRIS & CO.,

By GEO. F. HARRIS.”

+---------------------------------------------------+
                ¦“This proposition is accepted.¦M. & N. W. R. R. Co.¦
                +---------------------------------------------------+
                

By A. B. STICKNEY, President.”

Under this contract the appellant furnished a construction train with a crew to operate it, and Harris & Co. proceeded with the work of track-laying. The plaintiff's intestate was an employe of Harris & Co., engaged in laying down the rails on the track. At the time of the accident by which Miller was killed, he was riding to the front, to his work, and was seated on a platform car loaded with rails. Harris & Co. were made defendants in the action, but they obtained an order for a separate trial in the district court. It is not claimed by counsel for the plaintiff that the appellant is...