Pierson v. Chi. & N. W. Ry. Co.

Decision Date16 January 1905
Citation127 Iowa 13,102 N.W. 149
PartiesPIERSON v. CHICAGO & N. W. RY. CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Linn County; J. H. Preston, Judge.

Action by plaintiff, as assignee of N. F. Harrington, to recover damages for personal injuries received by him while in defendant's employ as brakeman, resulting, as alleged, from the negligence of defendant in failing to place proper and sufficient foot guards or blocks between the main rail and the guard rail of its track at a switch; the result of the defect being that Harrington's foot was caught between the rails while he was attempting to uncouple freight cars in motion, and that his foot and ankle were run over and injured so that amputation of his leg above the ankle became necessary. Verdict for plaintiff for $7,500, and from judgment thereon defendant appeals. Affirmed.James C. Davis, for appellant.

Rickel, Crocker & Tourtellot, for appellee.

McCLAIN, J.

At the time of the accident, Harrington, in the discharge of his duties as brakeman in the employ of defendant, was engaged in attempting to uncouple from the engine two freight cars which were being kicked upon a side track at the station of Wright, on a branch line of defendant's railroad, between Belle Plaine and Muchakinock. The engine and cars were provided with safety appliances for coupling and uncoupling, by means of which it was intended that a brakeman, in such operation, need not step inside the rails. A part of the appliance consisted of a rod across the end of the car, connected with the coupling pin, and provided at the outside end with a handle, by the use of which the coupling pin could be raised. The rod on the rear of the tender extended clear across, and was provided with a handle or lever at each end, so that it could be operated from either side; but the rods on the cars extended to only one side, being so arranged that, whatever way the car was being operated, there would be a lever or handle on the right-hand side of the forward end of the car. The engine and cars in question were being backed westward on a side track which was north of the main track, and Harrington, after turning the switch so as to throw the cars on the side track--the switch stand being also on the north side of the main track--waited until the engine and cars had been backed far enough, so that the coupling between the tender and the adjacent car was about opposite the switch stand, when he attempted to uncouple the cars from the tender by raising the lever of the coupling appliance attached to the tender. For some reason not explained in the evidence, this appliance failed to work, and Harrington was unable by the use of it to raise the coupling pin out of the socket so as to release the cars from the tender. He thereupon communicated to the engineer, through the fireman, a signal to stop; and, after the engine and cars had been brought to a standstill, he gave another signal, indicating that he desired the engine to be again put in motion slowly backward, and at the same time stepped between the tender and cars, and attempted to raise with his left hand the pin in the coupler attached to the freight car. While thus engaged, walking between the tender and the car, inside the rail, as the evidence tends to show, his foot became caught between the guard rail and the main rail; and, in attempting to throw himself from between the car and the tender, and outside of the rail, his foot, which had in some way been loosened, was caught under the wheels of the tender, and crushed.

The questions involved in the case relate to the negligence of the company, the assumption of risk by Harrington, and Harrington's contributory negligence, and the case may be most conveniently disposed of by considering the questions raised as to each of these elements.

1. It is contended for appellant that there was no evidence of negligence on its part as to the condition of the blocking between the guard rail and the main rail, and that there was no defect in such blocking which could be attributed to defendant as constituting a fault. But the evidence tends to show that the blocking in the main rail (that is, the block of wood fitted in below the ball of the rail, and intended to make the space between such blocking on the main rail and a similar blocking on the guard rail as narrow as the space between the balls of the two rails, so that a person's foot could not be caught under the ball of either rail) was defective, in that it did not come out as far as the end of the blocking of the guard rail, and also in that it did not come up flush with the ball of the rail, and left a small space, in which the sole of a shoe might be caught, and also that in the blocking at the side of the guard rail was a groove or crack which also furnished an opportunity for the sole of a shoe to become caught; the combined result of these defects being that a person's foot might be caught and held between the rails, so that it could not be extricated without drawing it backward--the very danger which the blocking of the rails was intended to prevent. Whether these defects, which it appears had existed for such length of time that the company was chargeable with knowledge thereof, were of such nature that their existence constituted negligence, was clearly a question for the jury. The court cannot say, as a matter of law, that, in the exercise of reasonable diligence, the company should not have so blocked these rails that Harrington's foot would not have become so firmly caught therein that he could not draw it out without pulling it backward; nor can we say that a space of a fourth of an inch between the ball of the main rail and the blocking, or a groove a quarter of an inch deep in the blocking of the guard rail, was so minute and insignificant a defect that its existence should not have been noticed by the defendant in the discharge of its duty to furnish a safe track for the use of its employés, and removed, or the danger therefrom in some way obviated, nor that it was not negligence on the part of the defendant to originally so arrange this blocking that such defects should exist. We are clear that, as to the negligence of the defendant, the evidence made a case to go to the jury.

2. As to assumption of risk, there is no evidence whatever that Harrington had actual knowledge, or could be chargeable with knowledge, of the defect in this particular blocking. He had had occasion only two or three times to engage in coupling or uncoupling cars at this station, and there is no evidence that he had been so engaged at this particular switch--much less, that he had had occasion to notice the condition of this blocking. It cannot be reasonably contended that a brakeman engaged in discharging his duties over a long line of road must inform himself, at his peril, of the condition of the blocking at each switch on the line, and it is not in any way shown that he had any actual knowledge of this particular defect. Trott v. Chicago, R. I. & P. R. Co., 115 Iowa, 80, 86 N. W. 33, 87 N. W. 722. It is argued for appellant that Harrington was charged with knowledge that there was more or less danger necessarily incident to guard rails, and that he assumed the risk of such danger. Let this be conceded. Nevertheless he did not assume the risk of a defective blocking, unless he was in some way charged with knowledge thereof; and the evidence tends to show that his injury did not result from stumbling over or striking his foot against the rail or blocking, as he had reason to assume that it existed, but from catching his foot in a defective blocking, of which he was not charged with knowledge. The argument that Harrington should have avoided the danger incident to the guard rail, if conceded to be sound, would lead to the result that an entire failure to block, or a faulty blocking, no matter how defective, would not be ground of complaint, even though the employé had no knowledge in the particular case of the failure or defect.

3. The principal controversy in this case is as to whether Harrington was guilty of contributory negligence in the method adopted for uncoupling the car from the tender of the engine. It is argued for appellant that, as the tender and the car next to it were provided with automatic couplers for the purpose of enabling employés to make the uncoupling without going between the cars, it was contributory negligence on the part of Harrington to step between the tender and car, inside the rail, while the engine was in motion, for the purpose of pulling the pin. We think it ought to be fully conceded, in view of the federal and state legislation requiring railroads to equip their cars and engines with automatic couplers, that it would be contributory negligence on the part of an employé to...

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