Pearl v. Omaha & St. Louis Railroad Co.

• Decision Date: 03 February 1902
• Citation: 88 N.W. 1078,115 Iowa 535
• Parties: MINNIE C. PEARL, Administratrix, v. THE OMAHA & ST. LOUIS RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

88 N.W. 1078

115 Iowa 535

MINNIE C. PEARL, Administratrix, v. THE OMAHA & ST. LOUIS RAILROAD COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 3, 1902

Appeal from Page District Court.--HON. A. B. THORNELL, Judge.

THE defendant appeals from a judgment for damages occasioned by the alleged negligent killing of F. E. Pearl.

Affirmed.

J. G Trimble and G. B. Jennings for appellant.

Dale & Bissell, Clark & Son and William Connor for appellee.

OPINION

LADD, C. J.

The deceased was in the employment of defendant as rear brakeman and the train on which he made his last trip reached Blanchard after 12 o'clock at night, on its way from Stanberry, Mo., to Council Bluffs, Iowa. The engine, to which were attached 12 or 13 freight cars, stopped north of the depot, on the main track, at the water tank, so that the caboose stood several car lengths to the south of it. The crew, except the fireman, entered the depot; and, upon the arrival of a southbound train on the east side track. Pearl said to the conductor, "Are we ready?" to which the latter responded, "Yes; as soon as we set this car out, we will go." Thereupon the engineer returned to his place, the head brakeman proceeded to tell him to pull down and set the car of lumber out, and, when the train had moved some distance, Pearl signalled it to stop, whereupon he cut off the six or seven cars, with the caboose, behind the car of lumber to be left. The engine, with the attached cars, moved beyond the switch, which the head brakeman set for the house track, next to the main track and, after pearl uncoupled the last car, backed and kicked it to the south on the house track. Both brakeman had been working on the left or west side of the train; and Pearl, whose duty it was to ride the car of lumber in and set the brake, attempted to pass over the house track at the north end (between it and the engine), in order to ascend the ladder on the other side, when the cars connected with the caboose, first detached, on which the brakes had not been set, ran against the kicked car, and moved it so suddenly toward the engine that it knocked Pearl down and passed over him; and, as the wheels of the front car on the main track dropped from the ends of the rails, the switch still being set for the house track, he was crushed and died within an hour. The particular act of negligence alleged is that the conductor failed to set the brakes on the caboose, so as to prevent the detached cars from moving toward the switch, as is alleged to have been his duty. Evidence introduced tended to show that in setting out a car, under the circumstances mentioned, it was usual and customary for the conductors on all trains on defendant's line to set the brake on the caboose, and thereby bring the detached portion of the train to a standstill, immediately upon being disconnected. Appellant insists such evidence was inadmissible, for that it appeared the work was done as usual. This is true with respect to all save the conductor. Whether he ordinarily pursued a different method was not shown, and evidence of the customary way of doing the work was admissable, as bearing on two questions: (1) Was it the conductor's duty to have set the brakes on the caboose? And (2) Had the deceased a right to rely on his doing so?

II. One Hussey testified to the customary way of setting cars out of a train, in the circumstances mentioned. He remarked that the hypothetical question described a "condition that is not very often seen"; that he did not remember any like that given, and had never been employed on this particular conductor's train. Appellant urges that, because of these answers, his testimony should have been excluded. Precisely to what he referred is not disclosed, unless it was the situation of the crew and what was said. In any event, these responses did not warrant the rejection of his evidence, but might well be considered in determining the weight to be given to it.

III. Callicott, who had testified to the usual manner of setting cars out, disclosed on cross-examination that he had been discharged from employment as brakeman by defendant, as he claimed, for leaving a switch unlocked. It appeared in a deposition taken at plaintiff's instance that he had said in answer to the question whether he had left it open: "I claim I left it unlocked. I didn't leave it open. I claim I left it unlocked." On the trial he denied so testifying, and insisted his answers were merely, "No, sir." Appellant complains of the exclusion of this portion of the deposition. The ruling was right, (1) because the answer at the trial does not materially differ from that in the deposition; and (2) it was an attempt to impeach on an immaterial matter.

IV. Exception was taken to receiving the following rule in evidence: "Conductors and enginemen will be held equally responsible for the violation of any of the rules governing the safety of their trains, and they must take every precaution for the protection of their trains." It bore directly on the duty of the conductor to perform the work customarily exacted from him in the protection of his...