Murphy v. Chi. Great W. Ry. Co.
| Decision Date | 23 November 1908 |
| Citation | 118 N.W. 390,140 Iowa 332 |
| Parties | MURPHY v. CHICAGO GREAT WESTERN RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Bremer County; Clifford P. Smith, Judge.
Suit to recover damages for a personal injury. There was a verdict and a judgment thereon for the plaintiff, from which the defendant appeals. Affirmed.Geo. H. Carr, Parker, Hewitt & Wright, and Hagemann & Farwell, for appellant.
Sager & Sweet, for appellee.
The plaintiff was injured while engaged in switching in the defendant's yard at Dubuque. He had been in the employ of the defendant as a brakeman for some little time prior to the accident, but had never theretofore engaged in the work of switching in yards. On the night in question he was called from his bed by the yard foreman, and directed to go into the yard and assist in switching in place of some of the regular switching crew. When he reached the yard, he was provided with a lantern by the yard foreman, and directed to follow a certain engine and work in connection therewith. He received his injury shortly after midnight. He was at the time riding on the footboard of the engine which was approaching a car that was to be moved. The evidence tended to show that the engine was moving toward the car at the rate of six to seven miles an hour, and that, when within some 15 feet of the car, the plaintiff discovered that the drawbar of the car was not in line, and gave the engineer a signal to stop; that the engine was not stopped upon his signal, nor at all, but continued to move toward the car at a rapid rate of speed; that, when the plaintiff discovered that his signal to stop was not heeded, the engine and the car were so close together that he thought it dangerous to attempt to escape from between them, and that, to save himself from being crushed by the impact, he attempted with his foot to push the drawbar of the engine in line with the drawbar of the car, but that he was unable to do so, so that they would couple, and the impact of the engine and car dislodged him from his position in such manner that his foot was caught and crushed. The specific acts of negligence with which the defendant was charged were moving the engine to the car at a fast and dangerous rate of speed, in bringing the engine against the car with unusual and excessive force, and in failing to heed the signals to stop which were given by the plaintiff. The plaintiff alleged one or two other grounds of negligence; but, as they were withdrawn from the jury by the court's instructions, they need no further attention. The plaintiff claimed in his petition, and so testified on the trial, that, when he discovered that the drawbar of the car was out of alignment, he thought that the drawbars would pass when the impact came, and that he would be crushed between the cars unless he could so change the drawbar on the engine as to make a coupling, and that he placed his foot on the shank of the engine drawbar for the purpose of pushing it over to meet the drawbar of the car, and thus avoid the danger of being crushed; that he was not using his foot for the purpose of making the coupling, but because he was holding on with his left, and using his lantern with his right for signaling, and that he used his foot only because of the emergency of the occasion.
The court instructed that, to entitle the plaintiff to recover, he must prove that, as the engine on the front of which he was riding approached the car in question, he made a proper signal for the engineer to stop the engine; that the engineer negligently failed to heed said signal, and moved the engine or permitted it to move to and against the car at an unusual, excessive, and dangerous rate of speed; that the plaintiff remained between the engine and car and put his foot against the drawbar of the engine for the purpose of pushing it in line with the drawbar of the car and to save himself from being crushed; that he did so because he believed he had not time to escape from between the engine and car, and believed it was necessary to push the drawbar of the engine in line with the drawbar of the car to save himself from being crushed; that negligence on the part of the engineer caused the plaintiff to put his foot against the engine drawbar, and was the proximate cause of the injury. The jury was further instructed that the plaintiff must prove himself free from contributory negligence. The defendant complains of the instruction just referred to, and says that it erroneously assumedthat, if the engineer failed to heed the plaintiff's signal to stop and moved the engine against the car at an unusual and dangerous rate of speed, the plaintiff would be justified in believing and acting upon the belief that the...
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