Neet v. Burlington, Cedar Rapids & Northern Railway Co.
| Citation | 76 N.W. 677,106 Iowa 248 |
| Parties | WILLIAM NEET, by his Guardian, America Mason v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant |
| Decision Date | 10 October 1898 |
| Court | Iowa Supreme Court |
Appeal from Grundy District Court.--HON. A. S. BLAIR, Judge.
ACTION for damages. Judgment for plaintiff, and defendant appeals.
Affirmed.
S. K Tracy for appellant.
Williams & Kern and Boies & Boies for appellee.
The only question presented is whether the verdict is sustained by the evidence. As a freight train, consisting of twenty-three loaded cars, one empty, and the caboose, was passing the depot at Rheinbeck, in a southeasterly direction, to a point beyond certain switches William Neet jumped on the platform of the moving caboose. After passing the switches, the train stopped, and backed on the passing track in a northwesterly direction. The head brakeman, Jordan, signaled the engineer to stop, and undertook to pull a pin so as to uncouple the rear cars. This pin was wedged in by cinders so that it could not be readily pulled, and the train, in taking up a slack, caused the caboose to jerk, and threw Neet from the platform of the caboose back on the track. He was caught in some way and carried back two hundred and fifty-four feet before the train was stopped. The wheels of the truck ran over both legs causing injuries which resulted in amputation. He was but seventeen years old, not in the employment of the defendant, and had no right to be on the train. It is not claimed that the defendant is responsible for injuries occasioned by the fall, or which resulted to him immediately afterwards. Indeed, recovery is based on injuries, if any, to him after the train had moved back, subsequent to his fall, one hundred and fifty feet. The charges of negligence are (1) that the brakeman failed to exercise ordinary diligence in stopping the train after being informed of Neet's perilous situation, and (2) that the head brakeman failed to give the engineer the emergency signal upon being so informed, and that, had such diligence been exercised, or signal been given, the train would have been stopped in time to have avoided the injury. Was there any evidence sufficient to go to the jury upon these two charges of negligence? The defendant insists that the evidence conclusively shows that the wheels ran over the legs immediately after Neet's fall. Neet testified that he fell inside of the rails, immediately turned over on his hands and knees, and was caught in the back through his clothing by a rod just back of the first brakebeam, from which he was torn loose when his legs were run over, and that he paddled along on his hands until the train was stopped. A scar on his back and the condition of his clothing, tended to confirm this story. He also said the wheels ran over his legs just before the train stopped. Davis saw the boy fall, and observed him struggle to keep his legs from under the wheels. Clifford was not positive, but thought his feet fell inside of the rails. On the other hand, Randall testified that the boy fell with his feet over the rails, and his legs were run over immediately. Gibson is unable to say whether his legs fell across the rails or whether he threw them there, but is positive that they were run over before the cars had moved ten feet. Barr, the conductor, felt the jar of the car wheels as though rising and going over something. All that can be said concerning this evidence is that it was in conflict. If the jurors believed Randall and Gibson, or relied upon the inference to be drawn from the statement of Barr, they might well have found that the injury occurred within the one hundred and fifty feet mentioned in the petition. But if they relied...
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