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

• Decision Date: 24 October 1905
• Citation: 105 N.W. 197,129 Iowa 5
• Parties: NEAL v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

129 Iowa 5

105 N.W. 197

NEAL

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

Supreme Court of Iowa.

Oct. 24, 1905.

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

Action to recover damages for the death of plaintiff's intestate alleged to have resulted from injuries received by him while in defendant's employ as switch tender, and to have been due to defendant's negligence. Verdict and judgment for plaintiff. Defendant appeals. Reversed.Carroll Wright and Cook & Dodge, for appellant.

Neal & Neal, for appellee.

McCLAIN, J.

The appellant's contention is that the trial court erred in overruling a motion to direct a verdict in its favor and in submitting to the jury the question whether the deceased was injured by reason of defendant's negligence, assuming that there was evidence tending to show negligence on the part of defendant in having defective blocking between the rails at the switch where deceased was injured; and the sole question argued is as to whether there is sufficient evidence to support a verdict for the plaintiff. Just prior to receiving the injury of which he died deceased, as employé of the defendant in the yards at Rock Island, where he was regularly employed as night switch tender, threw a switch for the purpose of having cars which were to be kicked westward pass from the track on which the train was standing to a parallel track, while the other cars were to be pushed westward upon the track on which the train was being operated. The switch which the deceased had just turned was about 100 feet east of an overhead viaduct, and the evidence tends to show that in the switching operation, in which deceased was at the time engaged, it would be necessary for him to pass westward from the switch he had just thrown to another switch west at the viaduct, and that he might have gone from the first switch, which was at the south side of the track on which the train was standing, to the second switch along an unobstructed course on the south side of that track. It appears, however, from the testimony of one Ross, who was engaged with deceased at the time in the operation of switching and was near deceased when he threw the first switch, that, with some remark about seeing whether the cars would clear after they were kicked back so that the remainder of the train might be backed further westward on the track on which the train was being operated, deceased started across the track to the northward after the signal to back the train was given and after it was in motion, but before the cars which were to run off on the switch track had been cut loose, and was struck by the rear end of the train, receiving the injuries of which he died. Ross was the only person in a position to see what happened, and all he can say is that in the darkness he heard an exclamation from the deceased and saw his lantern go under the car, that he signaled to the conductor, and that the train, which was being backed, according to all accounts, at a speed of about four miles an hour, was stopped within one or two car lengths after the signal was given. Deceased was found lying across the north rail of the switch track between the two wheels of the rear truck, his trousers caught fast to the column bolt projecting downward from the car. The car wheel had, however, not passed over his body, but the large toe of his right foot had been crushed and the knee and hip on that side lacerated, and he was severely injured about the shoulders and head. His body was pinched in under the front of the rear wheel, so that it was necessary to uncouple the rear car and push it a foot or more westward in order that his body might be released. The place where the deceased was found after the train was stopped was about 15 feet west of the point of the switch. The evidence relied upon for the plaintiff as tending to show that the accident was the result of defendant's negligence was to the effect that the wooden blocking between the movable rail and the stationary rail at the north side of this switch track was loose, so that it would press down with the weight of a person stepping upon it and allow the foot of such person to be caught between the two rails which were separated about five inches when the switch was open, as at the time of the accident. This piece of wooden blocking was three or four feet long, the eastern end about eight or ten feet from the point of the switch. The theory of counsel for plaintiff is that deceased caught his right foot between the rails as a result of stepping on the eastern end of this blocking and was thus held until the car ran over or against him; and, as supporting this theory, they rely upon evidence that the right shoe and overshoe of deceased were torn open at the heel from the vamp upward and his shoestring was broken, and, also, that a piece of the trousers of deceased and a portion of his right kneecap were found next morning forced in between the ball of the north rail and the wooden blocking which was bolted on the inside thereof between the ball and the base at the west end of the blocking, which has just been described as filling the space between the two rails. This is the only evidence in the...