Patton v. Cent. Iowa Ry. Co.

• Decision Date: 28 October 1887
• Parties: PATTON v. CENTRAL IOWA RY. CO.
• Court: Iowa Supreme Court

73 Iowa 306

35 N.W. 149

PATTON

v.CENTRAL IOWA RY. CO.

Supreme Court of Iowa.

October 28, 1887.

Appeal from district court, Cerro Gordo county; G. W. RUDDICK, Judge.

Action to recover for a personal injury. There was a trial to a jury, and verdict and judgment were rendered for the defendant. The plaintiff appeals.

BECK, J., dissenting.¹Richard Wilber and Card & Montague, for appellant.

A. C. Daly, Blythe & Markley, and John Cliggett, for appellee.

ADAMS, C. J.

At the close of the plaintiff's evidence the defendant moved that the court direct the jury to render a verdict for the defendant. The court sustained the motion, and directed the jury accordingly, and the plaintiff assigns the ruling of the court as error. The plaintiff was employed as a fireman on one of the defendant's freight-trains. While so employed, upon one of his trips the engine struck two cattle standing on the track, and became derailed and capsized. The defendant's negligence is alleged to consist in constructing its road with an improper curve, and improper grade at the point in question, and in not fencing against cattle, and in not warning him of the liability of encountering cattle at that point. The country was broken and hilly, and used for pasturage. The curve in the track at the place of the accident was six degrees, and the grade was 52.8 in a mile. About 40 head of cattle were in the pasture, and they had frequently been encountered near the place of the accident, and eight had been killed. The grade and curve were less than half as great as have been used upon other roads, and do not appear to have been greater than was rendered necessary by the topography of the country. The plaintiff was not very familiar with the road, though he had been over it before. He had an opportunity to know the character of the ground, and the fact that it was used as a pasture, but does not appear to have known much about the number of cattle pastured there, nor the fact that they had frequently been encountered near the place in question. No information had been given him by the defendant in respect to the grade, curve, or cattle.

The foregoing are the essential facts upon which the defendant's negligence is predicated. We cannot say that they have any tendency to show negligence. It may be that it would have been safer for the defendant's employes if the right of way had been fenced. But it has never been held, so far as we are aware, that a railroad company owes to its employes the duty of fencing its right of way. It is common, we believe, for railroad companies to omit, for a time at least, to fence their right of way in some places where it might fence. They must, we think, be allowed to determine for themselves whether they will fence in all places where they might. Employes who are employed to operate the road are supposed to contract to operate it in its unfenced condition so far as it is unfenced. Whatever additional exposure there may be is so common and patent they must be presumed to have taken it into consideration, and to have required that their compensation be graduated accordingly. The question as to the liability of a railroad company to an employe by reason of a want of a fence, where there is no statutory nor contract obligation to fence, and where the employe knew that there was no fence, is not a new one. The rule which we have expressed may be considered as settled. In Sweeney v. Railroad Co., 57 Cal. 15, the plaintiff's husband, acting as conductor, was killed under circumstances similar to those under which the plaintiff in the case at bar was injured. An instruction was approved which was given by the court below in these words: “If I understand the position of the plaintiff's counsel, it is this: That the defendant failed in its duty to its employes by not fencing its railroad track; that it was negligent in this respect, and the death of Sweeney is due directly to this negligence, and that to an action of this kind it is no defense that Sweeney had full knowledge of this particular negligence, and equally with the defendant well knew the danger that might flow therefrom; in other words, that a risk cannot, under any circumstances, be naturally incident to the employment if it be incurred through the negligence or want of care on the part of the employer. This, as it seems to me, is stretching the principle beyond its legitimate limits. As I understand it, one may engage in and conduct a dangerous business, provided it be one not prohibited by law, and to assist him may employ another without incurring a responsibility to such employe for injuries sustained in such hazardous business, provided the danger or risk be equally known to both. In such case the servant voluntarily entering upon an employment, the dangers and hazards of which are well known to him, must be held to have assumed the consequences of such risks.”

In Fleming v. Railway Co., 27 Minn. 111, 6 N. W. Rep. 448, the plaintiff's intestate was acting as fireman in operating the defendant's road, and was killed under circumstances similar to those under which the plaintiff in the case at bar was injured. A recovery was sought under a statute which provides that “any company or corporation operating a line of railroad in this state, and which company or corporation has failed, or neglected to fence said road, * * * shall hereafter be liable for all damages sustained by any person in consequence of such failure or neglect.” It was held that the plaintiff could not recover under the statute. The court said: “If the servant enters upon and continues in the service of the company with knowledge of the unsuitableness and inadequacy of the instrumentalities furnished for the operation of the road, it is his own negligence, and...