Nicholaus v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 30 January 1894
• Citation: 57 N.W. 694,90 Iowa 85
• Parties: ED. F. NICHOLAUS v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

57 N.W. 694

90 Iowa 85

ED. F. NICHOLAUS v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 30, 1894

Appeal from Muscatine District Court.--HON. W. F. BRANNAN, Judge.

ACTION for personal injuries. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

J Karkskadden for appellant.

Jayne & Hoffman for appellee.

OPINION

GRANGER, C. J.

In November, 1888, the plaintiff was in the employ of the defendant, as a brakeman, and was running between Muscatine and Munn. He had been on this line about six months. In going out from Muscatine, after passing Wilton, there was a station called the "U. S. Limekilns," and Munn was still further out. It was the custom, at the limekilns, to leave on the switch the passenger coach and baggage car, and the rest of the train would run to Munn, and returning it would attach the cars left when going out, and proceed toward Muscatine. It frequently occurred that the engineer would stop at Wilton, and from there, out and back the engine would be in charge of the fireman; and it was quite usually the case that the conductor would remain at the limekilns with the coach, engaged in making his daily reports. On the seventh of that month the train consisted of an engine, several freight cars and the passenger coach. The engineer stopped off at Wilton, and the conductor remained, as usual with the coach at the limekilns. This left with the train the fireman, in charge of the engine, and the two brakemen, of whom the plaintiff was the front one. The train returned from Munn to the limekilns, and the plaintiff left the engine where he had been with the firemen, turned the switch, and let the train back to be coupled to the cars that had been left. In making this coupling, plaintiff's hand was injured, for which recovery is now sought. The petition charges negligence in several particulars; as, "absence of the engineer from his post of duty on the engine; carelessness of the fireman in charge of the engine, and his failure to perceive the signals given him by the plaintiff, and his failure to give signals to the plaintiff, and running the cars together without warning, and in suddenly starting the train, and bringing the cars together, after they had almost come to a stop, and absence of the conductor, and his failure to see and superintend the switching of the train." The coupling was made at a curve in the track, and, because of better ground to walk on, the plaintiff was on the left hand side of the train, walking with his hand on the ladder, when he gave the signal to stop as the moving part of the train approached the cars to be coupled on. He says it nearly stopped, and, as he was "changing the link, it came back with a sudden start," and his hand was caught between the bumpers and injured. It appears that the train was backing up cautiously to where it stopped, or nearly so, and the wrongful or negligent act was in starting it again without a signal from the plaintiff, and that none had been given. As we gather from the record, the movements of the train at the particular time were upon signals from the plaintiff as he was about to make the coupling. He had signalled it to stop as being at the point of coupling. It having stopped, or nearly so, he attempted to change the link from one drawbar to the other, in order to properly make the coupling, and he had a right to suppose there would be no further movement of the train until he should direct it. The link being fast in the drawbar from which it was to be taken, it required some effort to remove it, and, in doing this his hand came between the bumpers and a sudden unexpected movement of the train caught it. The negligent act seems to have been attributed directly to the person acting as engineer, and a particular act of negligence charged against the defendant is that of the fireman as engineer. The court gave the following instruction: "9. If you find that the engineer left the management of the engine to his fireman on the trip during which the accident...