Pieart v. Chi., R. I. & P. Ry. Co.
| Decision Date | 04 February 1891 |
| Citation | 47 N.W. 1017,82 Iowa 148 |
| Court | Iowa Supreme Court |
| Parties | PIEART v. CHICAGO, R. I. & P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Cass county; H. E. DEEMER, Judge.
Action to recover damages because of alleged negligence of the defendant's agents and employes, causing the death of plaintiff's intestate without fault or negligence on the part of deceased. Answer denying generally. Trial by jury, return of special findings, and a general verdict for plaintiff for $8,800. Defendant's motion for judgment on the special verdict, and also its motion for a new trial, overruled. Defendant appeals. The further facts necessary to be considered appear in the opinion.T. S. Wright and R. G. Phelps, for appellant.
L. L. De Lano and F. B. Huckstep, for appellee.
1. The following statement of the facts, with such as are hereinafter mentioned, will be sufficient to an understanding of the questions discussed. They appear without question except in two or three respects which will be mentioned. Plaintiff's intestate, Frank Pieart, aged 22, had been in the employ of the defendant as a switchman at its yards in Atlantic for about one year before his death, at a salary of $40 per month, and for several years prior thereto in other capacities. As such switchman it was his duty to assist in placing cars into trains ready to be taken out on the road, and in moving cars from place to place, in the yard, as might be necessary For this work an engine in charge of an engineer and fireman, with two switchmen, the four constituting the crew, was provided. This work was performed under the orders of Frank Cain, as yard-master, who gave directions as to what cars were to be moved, and where to, but did not direct as to the immediate details of their movement. It was the duty of deceased, as switchman, to couple and uncouple cars to and from each other, and the engine, when necessary in switching, and to give signals to the engineer when to move and to stop the engine, which signals it was the duty of the engineer to obey. Up to within one week prior to the 20th day of February, 1885, the defendant had furnished, for that work, a road-engine, No. 198, with run-boards bolted to the base of the pilot or cow-catcher, the purpose of which was that switchmen might step and stand thereon when the engine was in motion, and thereby be carried from point to point, and from which to make couplings when necessary. This engine became out of repair. The run-boards were detached by deceased and his fellow-switchman Adams, and the engine was sent away for repairs. Another road-engine was furnished for use in its place. This engine had no run-boards, and the space between the bars of the pilot had been filled in with strips of timber for winter use, as is customary, for the purpose of preventing snow from passing between the bars. On the 20th of February, 1885, the deceased, with the others of the crew, was engaged in switching cars. A car was attached in front of the engine, and standing still on the track. The movement to be made was to move the engine forward, so as to shove the car in, onto a side track, where it was to remain, far enough to clear for the passage of cars on the parallel track. The deceased signaled the engineer to move the engine forward, and, after it was in motion, stepped between the car and engine to draw the pin that coupled them together, and while attempting to do so, because of the presence of snow and ice on the ground, he slipped and fell, and was run over by the moving engine, and so injured that he soon after died. As to these facts there is no conflict. When the change of engines was made, and again on the morning of the day on which deceased was injured, and shortly before his injury, he had conversations with the yard-master Cain about using the engine without run-boards. There is a contention as to those conversations which will be hereafter noticed, also a contention as to whether deceased had been informed of a certain rule published by defendant on its time-card, and introduced in evidence.
2. After verdict it was stipulated that appellants have five days in which to file a motion for judgment in arrest of judgment, and for new trial, which motions were filed within that time. On the day of the hearing, appellee moved to strike the motion for new trial because the defendant had filed the motion for judgment, and insisted thereon. The judgment entry shows that the cause came on for hearing on these motions, and by agreement they were all fully submitted and taken under advisement, and afterwards defendant's motions were overruled. Appellee insists that appellant has no standing in this court upon its motion for new trial; that, by insisting on the motion for judgment, the motion for new trial was waived, which waiver was equivalent to withdrawing it from the files; and that, at the time of the submission, it was too late to file a motion for new trial. Nixon v. Downey, 49 Iowa, 166, is relied upon. Much that is said in that case is clearly inapplicable to the facts of this. In that the defendant moved for judgment on the special findings, and also filed a motion for new trial, “to be ruled on in case the motion for judgment on the special findings should be overruled.” Defendant's motion for judgment was sustained, and the plaintiff appealed. The ruling of the court in sustaining defendant's motion, and rendering judgment in his favor on the special findings, was reversed, and the question arose whether the case should be remanded for a ruling upon the motion for a new trial, or for judgment in favor of plaintiff on the general verdict. In this case no question can arise as to how it may be remanded. Defendant's motions were filed within the time agreed upon, and both were considered and overruled. It is not questioned but that a party may follow a motion for judgment on special findings with a motion in arrest, and for new trial, if the former is overruled; nor indeed is it questioned but that he may file both motions at the same time, the one for new trial to be considered if the former is overruled. The contention is that pending the former the latter stands as waived as though it were not on file, and if the former motion is not ruled upon within the time allowed for filing a motion for new trial, it cannot thereafter be filed. To so hold would deny to a party the right to move for a new trial when the business of the court prevented ruling upon his motion for judgment within the time fixed for filing such motions. Certainly it is not the design of the law to deprive a party of a right to a hearing upon both motions. It would seem to be a sufficient answer to appellee's contention that these motions were filed and submitted under stipulations that prevented a ruling upon the former within the time allowed by statute for the filing of the latter. To determine when either motion becomes a waiver of the other, we must look to the facts. In Nixon v. Downey, supra, the motion for new trial was waived, because the defendant had obtained a favorable ruling upon his motion for judgment, and therefore did not and could not press his motion for new trial; he thereby put it out of the power of the court to rule upon that motion. In Williams v. Frick, 71 Iowa, 362, 32 N. W. Rep. 382, the defendant moved for judgment on the special findings, which motion was overrued, and he then moved for new trial, which was sustained. We are of the opinion that, within the time allowed, a party may file his motion for judgment, and also his motion for a new trial, to be ruled upon in case the former is overruled. In such case, if the motion for judgment is sustained, that is a waiver of the motion for new trial; but, if the motion for judgment is overruled, the motion for new trial may be insisted upon, and, if sustained, that is a waiver of any errors in overruling the motion for...
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