Phinney v. Illinois Cent. R. Co.

• Decision Date: 29 January 1904
• Citation: 98 N.W. 358,122 Iowa 488
• Parties: FRANK P. PHINNEY, Administrator of the Estate of Robert S. Phinney, Deceased, v. THE ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, AND THE DUBUQUE & SIOUX CITY RAILROAD COMPANY
• Court: Iowa Supreme Court

98 N.W. 358

122 Iowa 488

FRANK P. PHINNEY, Administrator of the Estate of Robert S. Phinney, Deceased, v. THE ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, AND THE DUBUQUE & SIOUX CITY RAILROAD COMPANY

Supreme Court of Iowa, Des Moines

January 29, 1904

Appeal from Cherokee District Court.--HON. GEO. W. WAKEFIELD, Judge.

ACTION to recover damages for the death of plaintiff's intestate, who died as the result of injuries received while in the employ of the Illinois Central Railroad Company as brakeman. The jury returned a verdict in favor of the defendant, the Dubuque & Sioux City Railroad Company, the owner and lessor of the line of road on which the accident happened, and against the defendant the Illinois Central Railroad Company, the lessee of the road, which will be treated in the opinion as the sole defendant. From judgment on the verdict against it, the Illinois Central Railroad Company appeals.

Reversed.

W. S Kenyon and E. C. Herrick for appellant.

A. R Molyneux and J. D. F. Smith (J. M. Dickinson, of counsel) for appellee.

OPINION

MCCLAIN, J.

The defendant, the Illinois Central Railroad Company, was in August, 1900, the lessee of a line of road belonging to the defendant, the Dubuque & Sioux City Railroad Company; and a portion of this line, extending east and west through Le Mars and Merrill, between which two places this accident happened, was also used by the Chicago, St. Paul, Minneapolis & Omaha Railroad, under some arrangement by which its trains were run over the track under the rules and on the time card of the Illinois Central Railroad, and under the direction of the train dispatcher of the latter. Deceased was a brakeman on a construction or gravel train which had been operating between Le Mars and Merrill, and on the evening of August 31st, about half past 9 o'clock, one Fletcher, who was the conductor of the train, and the deceased were standing on a flat car, which, as the train was backing eastward toward Le Mars, was the front car of a train of about sixteen cars. Fletcher, the conductor, testifies that, when they were about a mile and a half from Le Mars, they saw the headlight of a train approaching them, coming from the east, and, to avoid a collision, they gave emergency signals with their lanterns to cause their train to stop; that the engineer, in response to these signals, applied the emergency air brake, which brought the train, which was running about twelve or thirteen miles an hour, to a sudden stop, within four or five car lengths; and that, as the result of this sudden stopping of the train, deceased was thrown forward and fell off the flat car and under the wheels, which ran over him, inflicting injuries from which he died within twenty-four hours. The train which was coming from the east proved to be a train of the Chicago, St. Paul, Minneapolis & Omaha Road, and it also was stopped when it was within fifteen feet of the train on which deceased was riding. These essential facts with reference to the occurrence of the accident will be sufficient to furnish a basis for the discussion of the principal questions of law involved in the action, and other facts material on particular questions will be stated hereafter.

The case was tried and the jury was instructed with reference to two claims of negligence as against the defendant: First, that the engineer and conductor of the Chicago, St. Paul, Minneapolis & Omaha train, which will hereafter be designated as the Omaha train, were negligent in running such train west from Le Mars contrary to orders, and thus occasioning the accident, and that the defendant was responsible for their negligence; and, second, that the train dispatcher of the defendant company was negligent in giving to the conductor and engineer of the Omaha train misleading orders, which caused them to proceed west from Le Mars, and thus brought about the accident. Under the evidence, however, it does not appear that there were any such arrangements between the two roads using this track in common as to make the defendant liable for negligence of the servants of the Chicago, St. Paul, Minneapolis & Omaha Road, and we are inclined to think that the trial court erred in submitting to the jury any issue with reference to the liability of the defendant company for the negligent acts of the servants of the other company. In view, however, of a special finding by the jury that the conductor and engineer operating the Omaha train did not have notice that the construction train of the defendant was on the track between Le Mars and Merrill, there was, perhaps, no prejudice from the erroneous submission of this question; and, as counsel for appellee do not seek to sustain the recovery on the ground of any such negligence, we need not further consider this branch of the case.

Counsel for appellant ask a reversal of the judgment against defendant, assuming that it is predicated on negligence of the train dispatcher in giving erroneous and misleading orders to the conductor and engineer of the Omaha train, on substantially four grounds, which will be considered in order, to wit, assumption of risk by the deceased, contributory negligence on the part of the deceased, lack of immediate causal connection between the alleged negligence and the injury, and that the orders given were not misleading, and did not authorize the Omaha train to proceed west of Le Mars until the conductor and engineer in charge of that train were advised that the construction train of defendant had reached either Le Mars or Merrill, and thus left the track clear. As, in the event of a new trial, these questions may again arise, it is necessary that we at least briefly consider all of them.

I. With reference to assumption of risk, it is sufficient to say that by entering into an employment, even though it be hazardous, the servant does not assume the risk of negligence of his principal; nor, if he is employed in the operation of a railway, does he assume, in this state, in view of the provisions of Code, section 2071, which makes a railway company liable for damages sustained by an employe in consequence of the negligence of a co-employe, the risk of negligence of his co-employes. If, therefore, the accident resulted from the negligence of the train dispatcher, recovery is not precluded by any rule of law relating to assumption of risk. Pullman Palace Car Co. v. Laack, 143 Ill. 242, 256 (32 N.E. 285, 18 L.R.A. 215); Chicago, B. & Q. R. Co. v. Avery, 109 Ill. 314, 322; Ford v. Lake Shore & M. S. R. Co., 124 N.Y. 493, 498 (26 N.E. 1101, 12 L.R.A. 454). Counsel for appellant cite many authorities in support of the proposition that one who enters upon the hazardous employment of engaging in the operation of railroad trains assumes the risks incident thereto, and contend that one of these risks is the danger involved in the sudden stopping of a train in response to an emergency signal; but we think that he does not assume the risk that such an emergency stop will be rendered necessary by the negligence of his co-employes. The fault with which defendant is charged is not that of the engineer of the defendant's train in improperly managing it, but the fault of the train dispatcher in sending or permitting another train upon the track so as to threaten a collision, thus rendering the emergency stop necessary, and bringing about the consequences involved in such a sudden stoppage of the train.

II. The only evidence tending to show contributory negligence on the part of deceased, if any there be, is found in the fact that, when the train on which he was riding was suddenly stopped, he plunged forward over the end of the flat car on which he was standing and fell under the wheels, while the conductor, who stood beside him, was able, as he testifies, without difficulty, to save himself from thus falling. So far as the accident constitutes affirmative evidence, it certainly was not conclusive, and was for the consideration of the jury. The fact that, of two persons put in equal peril, one escapes, and the other is killed, certainly is not in itself conclusive that the one injured was negligent.

But the principal contention of counsel on this branch of the case is that the court erred in instructing the jury that they might take into account the instinct of self-preservation as evidence of the exercise of proper care and caution on the part of deceased, and this instruction is of vital importance, in view of the rule in this state that plaintiff has the burden of proving in such cases freedom from contributory negligence by the person injured. The rule as to the inference which may be drawn from the instinct of self-preservation has been fully discussed in recent cases in this court, and need not be elaborated. The consideration of the instinct of self-preservation is to be limited to cases in which there is no direct evidence bearing on the question whether or not the injured party was in the exercise of due care at the time when the injury occurred. Bell v. Clarion, 113 Iowa 126, 84 N.W. 962; Ames v. Waterloo & C. F. R. T. Co., 120 Iowa 640, 95 N.W 161. The only difficulty is in determining the applicability of the rule under the facts of this case. All the evidence there is with reference to the circumstances attending the fall of deceased from the car is that of Fletcher, the conductor. His testimony is that he and the deceased were standing side by side, about one-third of the length of the car, which...