Perigo v. Chi., Rock Island & Pac. R.R. Co.

• Decision Date: 27 October 1879
• Citation: 52 Iowa 276,3 N.W. 43
• Parties: EVA L. PERIGO, ADMINISTRATRIX, APPELLEE, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, APPELLANT.
• Court: Iowa Supreme Court

52 Iowa 276

3 N.W. 43

EVA L. PERIGO, ADMINISTRATRIX, APPELLEE,

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY, APPELLANT.

Supreme Court of Iowa.

Filed October 27, 1879.

Appeal from Polk circuit court court.

The plaintiff, administratrix of the estate of V. R. Perigo, deceased, alleges that through the negligence of the defendant an injury was inflicted upon the said V. R. Perigo, causing his death, and claims on account thereof the sum of $20,000. There was a jury trial, and a verdict and judgment for plaintiff for $5,000. The defendant appeals.Wright, Gatch & Wright, for appellant.

Bryan & Bryan, for appellee.

DAY, J.

The evidence shows that the defendant erected a coal platform between two of its tracks at Winterset and for convenience in unloading and taking on coal placed it so near one of the tracks that a passenger car moving along the track passed within seven inches of the platform at one end, and within four and one-half inches of it at the other end. At the time of the accident the platform had been erected and in the same position for two or three years. The deceased was a baggage man on the defendant's passenger train, and it was his duty to assist in making up the trains. He had been in this employment more than two years, and had assisted in making up the train nearly every day during that time. In making up the passenger trains the cars were moved along the track past the coal platform. The evidence tends to show that the deceased, in making up the train, was knocked off the car by the coal platform, and injured to an extent resulting in his death. The only negligence complained of on the part of the defendant is the erection of the coal platform so close to its tracks. The defendant asked the court to instruct the jury as follows:

“If you believe, from the evidence in this case, that the proximity of said coal platform to the track and to cars as they passed was plain and apparent, and the liability to injury therefrom manifest, and that deceased knew of such proximity, or by the exercise of ordinary care to avoid injury to himself might have known, and with such knowledge, or opportunity of knowledge, remained in the defendant's employ and continued to work in the vicinity thereof without objection or protest, and without promise of amendment, then plaintiff cannot recover in this action.”

The court refused to give this instruction as asked, but gave it with the following modification: “Unless you further find from the evidence that in this particular case and instance the service to be performed in line of deceased's duty was of such a character as to require that his exclusive attention should be fixed upon...