Moore v. Chi., B. & Q. Ry. Co.

• Decision Date: 18 March 1885
• Citation: 22 N.W. 650,65 Iowa 505
• Court: Iowa Supreme Court
• Parties: MOORE v. CHICAGO, B. & Q. RY. CO.

65 Iowa 505

22 N.W. 650

MOORE

v.CHICAGO, B. & Q. RY. CO.

Supreme Court of Iowa.

Filed March 18, 1885.

Appeal from Monroe circuit court.

It is alleged in the petition that in March, 1881, a suit was pending in one of the courts of Monroe county between plaintiff and defendant, in which plaintiff sought to recover of defendant damages for personal injuries which he had sustained while in defendant's employ; and that the parties entered into a contract for the settlement of plaintiff's claim; and that, among other things given by defendant in said settlement, was a written undertaking by it to employ plaintiff as a baggage and express man whenever he was able to go to work, and to give him steady employment in such position, and to pay him the wages usually paid for such services, which was $60 per month; and that in December, 1882, plaintiff notified defendant that he would be ready and able to go to work as baggage and express man on the first of January, 1883, and that he has at all times since that date been ready, able, and willing to enter upon said services and perform the duties of said employment, but that defendant refused and failed to give him employment therein; and that by reason of this failure and refusal plaintiff was out of employment from January 1 to September 1, 1883; and for the value of his services under said contract during that time plaintiff asks judgment.

Defendant in its answer admitted the making of the contract as alleged in the petition, but denied that it refused plaintiff employment under said contract; but alleges that it employed him on one of its railroads as baggage-man and expressman, and that he remained in said employment but a short time, when he voluntarily left said employment and ceased to work therein. It also alleged that plaintiff was not qualified nor able to perform the duties required of a baggage and express man on its road; and that he was not competent to discharge said duties. The verdict and judgment was for plaintiff, and defendant appeals.T. B. Perry, for appellant.

J. E. Townsend and John T. Lacy, for appellee.

REED, J.

The evidence given on the trial shows that plaintiff informed defendant in the month of December, 1882, and at other times between that and the first of the following July, that he was able to go to work as express messenger and baggage-man, and that he desired to be employed in that capacity under the contract between the parties. Shortly before the first of July he was directed by one of defendant's agents to hold himself in readiness to go to work, and on the second of that month he was directed to take charge of the baggage and express business on defendant's road from Albia to Des Moines. The baggage and express matter are carried on that route in the same car, but the express business is conducted by the American Express Company. The train on which plaintiff went to work makes one trip daily from Albia to Des Moines and return. On the trip on July 2d a route agent of the express company, also another employe of the company, accompanied plaintiff, riding with him in the express and baggage car, and rendered some assistance in handling the baggage and express matter, and the route agent gave plaintiff some directions as to the proper manner of doing the work and transacting the business. The route agent also accompanied plaintiff on the trip the next day. But when they arrived at Des Moines, plaintiff quit the work. Whether he quit voluntarily or was discharged by the route agent is in dispute between the parties. But the jury found that he was discharged, and the verdict in this respect finds sufficient support in the evidence. It frequently happens that single pieces of baggage, weighing as much as 250 pounds, are carried on the car, and the express business done on the line is quite extensive. The handling of the baggage requires the exercise of a good deal of physical strength; and a good deal of dispatch is required in the transaction of the express business to avoid delaying the train unduly at the different stations. The express messenger is also required to make duplicate way-bills of such express matter as is received at certain stations on the line, and to enter them upon his delivery book. This writing must be done while the train is in motion; and as these bills and entries constitute the company's record of the business, it is important that the writing should be legible.

It was claimed by defendant that plaintiff did not possess the physical strength requisite for the handling of the baggage; and that he possessed neither the skill nor activity required in the proper transaction of the express business; and that he could not write a legible hand.

The route agent, and the other employe of the express company who accompanied plaintiff on the second of July, were examined as witnesses on defendant's behalf. It was shown that they each had had long experience as express messengers and baggage-men on railroads, and that they were well acquainted with the amount and character of the business done on the route from Albia to Des Moines. Defendant asked these witnesses a number of questions, with the view of eliciting their opinions as to the ability and capacity of plaintiff to perform the duties of baggage-man and express messenger. They were asked whether, in their opinion, he possessed the qualifications and capacity and fitness to discharge the duties devolving on an express messenger and baggage-man, and whether, in their opinion, he possessed sufficient physical strength to handle the amount of baggage which was...