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

• Decision Date: 25 October 1905
• Citation: 104 N.W. 1135,128 Iowa 685
• Court: Iowa Supreme Court
• Parties: MUMFORD v. CHICAGO, R. I. & P. RY. CO.

128 Iowa 685

104 N.W. 1135

MUMFORD

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

Supreme Court of Iowa.

Oct. 25, 1905.

Appeal from District Court, Scott County; J. W. Bollinger, Judge.

Action at law to recover damages for personal injuries received by plaintiff while acting as a brakeman on one of defendant's trains. The alleged negligence consisted of defects in a side track or switch over which plaintiff was riding, rapid and unsafe speed of the train, and failure to provide a sufficient number of employés to assist in the work. Defendant's answer was a general denial. a plea of assumption of risk, and a contract bar of the right of action. On these issues the case went to trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Affirmed.Carroll Wright and Cook & Dodge, for appellant.

Ely & Bush, for appellee.

DEEMER, J.

For a reversal of the judgment defendant relies upon five propositions, three of them based upon instructions given and refused, and two upon questions of fact; that is to say, that the verdict is without support, and that the trial court should have directed a verdict in defendant's favor. That the track over which the car upon which plaintiff was riding, and from which he claims he was thrown, was in a dangerous and defective condition, is so well established that defendant's counsel in their opening argument make no question as to defendant's negligence. The contentions in this respect are that plaintiff had knowledge of the defect and assumed the risk; that he was guilty of contributory negligence, and at the time he was injured was violating a rule of the company. This rule provided that “in no case must a train be backed over, nor cars cut from engine and run over, a public crossing or highway, unless there is a man on the leading car, who at night must display a light.” The jury was authorized to find that plaintiff was thrown from a box car upon which he was riding by reason of a sudden and severe jolt or jar to the car, caused by a defective switch track in the city of Des Moines; that he had never been over this track before in the daytime, and had never ridden a car over the defective portion of the track at any time; that he had no knowledge of the defect, and had never been in a position where he could reasonably have discovered it. That there may have been defects in defendant's track at other places is not in itself sufficient to charge plaintiff with notice of the particular defect complained of. Plaintiff did not know of this defect, and was in no position, so far as shown, to have acquired knowledge of it. At least the jury was authorized to so find. Pierson v. R. R. (Iowa) 102 N. W. 151, is squarely in point on this proposition. Plaintiff, of course, assumed the ordinary hazards of his employment, but not the risks incident to such defects in the track as were here disclosed, unless he had knowledge thereof. If he knew, or should in the exercise of ordinary care have known, of these defects, and continued to work over them without protest, he assumed the hazard. This matter of assumption of risk was clearly for the jury, and was properly submitted to them under approved instructions.

2. Instruction No. 13 given by the trial court reads in part as follows: “In other words, defendant is not liable in this case unless plaintiff was injured by being jarred or jolted off the side of the car, as he claims, while he was riding there with one foot in the stirrup and one on the journal box.” This is complained of because it is said it runs counter to the rule of assumption of risk already mentioned, and authorized the jury to return a verdict in plaintiff's favor if he was injured while riding as stated in the instruction. It is argued that the instruction entirely eliminated defendant's rule before quoted, and that, if plaintiff was riding as stated in the instruction, he was guilty of contributory negligence as a matter of law. The instruction quoted is a mere excerpt from instruction 13, which according to its very terms had reference to the question, “Was plaintiff injured by reason of defendant's negligence?” It is unfair to the trial court to single out this paragraph as stating the entire case, and claim error on account thereof. In the connection in which it was used it was absolutely correct; for the reason that, if plaintiff was not injured by being jarred from the car as he claimed, he was not injured by defendant's negligence. The questions of assumption of risk, plaintiff's contributory negligence, etc., were fully covered in other instructions, which save as hereinafter noted are not complained of. Moreover, we do not think that any such violation of the defendant's rule was shown as to justify an instruction with reference thereto. But, conceding arguendo that we are wrong in this, the trial court instructed the jury that they should consider whether or not plaintiff in the performance of his duty should have been in the position he was when hurt. In the absence of request for a more specific statement as to the effect of defendant's rule, this was all that was required.

3. Another instruction reads in this wise: “(20 1/2) Another question on the subject of assumed risk is, was the joint in the track in the condition of ordinary loose joints on defendant's line of railroad? Or was it of a more serious or dangerous character than the ordinary loose joint on said railroad? You are instructed that, in assuming all the ordinary risks of danger in his employment, the plaintiff assumed all the risks of danger from ordinary loose joints such as the evidence shows are frequently found in defendant's line of track. If you find a loose joint caused the accident, that it was not known to the plaintiff to have existed there, or would not have been known, had he exercised ordinary care, and that it was not an ordinary loose joint, but was of a more serious and dangerous character than an ordinary loose joint, then the plaintiff did not assume the risk of any danger caused by said joint. You must decide the question of assumed risk from the evidence in the case.” This is complained of as announcing an incorrect rule of law. As applied to the facts, we think it was correct. Plaintiff must have known, or in the exercise of ordinary care should have known, of the defect which caused his injury, in order that he may be held to have assumed the risk. That he knew of other defects, even of a similar nature, is not conclusive, although evidence, perhaps, that he knew or should have known of the particular defect complained of. The entire doctrine of waiver or assumption of risk is based upon knowledge, actual or implied, and consent or the equivalent thereof; that is to say, if the injured party in the exercise of ordinary care should have known of the defect, he in law is held to a knowledge thereof. If with knowledge, actual or implied, he continues in his master's employ without protest and promise of repair, he is held to have acquiesced in, consented to, and assumed the risk. But without this knowledge, actual or implied, there can be no waiver. The instruction was correct. McCauley v. Car Co. (Mass.) 47 N. E. 1006, relied upon by appellant, is not in point.

4. We come now to the principal point relied upon by the defendant for a reversal of the judgment. In plaintiff's application for employment which he made to the company we find this printed provision: “In further consideration of such employment, I...