Pringle v. Chicago, R.I. & P.R. Co.

• Decision Date: 23 October 1884
• Citation: 21 N.W. 108,64 Iowa 613
• Parties: PRINGLE v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO
• Court: Iowa Supreme Court

21 N.W. 108

64 Iowa 613

PRINGLE v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO

Supreme Court of Iowa, Dubuque

October 23, 1884

Appeal from Van Buren District Court.

ACTION to recover on account of personal injuries sustained by plaintiff while in the employment of defendant as a brakeman which are alleged to have been caused by the negligence of other employes of defendant, engaged with plaintiff in operating the cars at the time of the injury. There was a verdict and judgment thereon for plaintiff. Defendant appeals. The facts of the case are fully stated in the opinion.

AFFIRMED.

M. A Low, for appellant.

W. M Walker and W. H. C. Jacques, for appellee.

OPINION

BECK, J.

I.

The undisputed evidence in the case establishes the following facts: Plaintiff, while in the employment of defendant as a brakeman, was required, in the discharge of his duty, to assist his co-employes in attaching a car, which stood upon a side track, to the train he was engaged in operating. To do this, it was necessary to draw the car backward from the side-track, where it was found, to the main track, and then to move it by a forward motion of the engine through a switch to another side-track, thus permitting the train to pass and to be coupled to the car, taking it in the rear. This was done by what is called, in the language of the train men, "kicking." The engine is moved forward at sufficient speed to give the car the momentum which will move it to the place where it is desired to leave it, and, while in motion, the engine is uncoupled from the car, and is then stopped, as in this case was the purpose. When the engine and car had reached the main track from the side-track just mentioned, they were stopped, and plaintiff, as required by his duty, went upon the "break beam" of the car, at the end next to the engine, for the purpose of drawing the coupling-pin at the proper time, in order to permit the car to be "kicked" upon the side-track. After sufficient momentum was obtained, he drew the coupling-pin and gave the signal to stop the engine, and then, waiting until the car had moved sixty or seventy-five feet, and had gained twelve or fifteen feet distance from the engine, he went from the "break beam" to the track, stepping between the rails, and very near one of them. He was almost immediately struck by the pilot, and his limbs were drawn under it. By clinging to the pilot he prevented his body from being drawn under it, and he was dragged in this position seventy-five feet, when the engine was stopped and backed, and he was thus released from the peril. His duty required him to couple the engine to the train, which had been left on the main track, and to which the engine was to be "backed," after "kicking" the car. The plaintiff testified that, after giving the signal for stopping the engine, and after the car had gone sixty or seventy-five feet, gaining upon the engine twelve or fifteen feet, he believed that the engine had stopped, and therefore he went to the ground, and that he alighted between the rails for the reason that the condition of the track would not permit him to alight outside of them.

The foregoing facts are stated in the testimony of plaintiff, and are not contradicted by other witnesses. The engineer states that the engine could have been stopped in the distance of forty-eight or fifty feet. The fireman, when plaintiff pulled the coupling-pin, directed the engineer to stop the engine.

II. We shall proceed to the consideration of the objections to the judgment of the district court in the order we find them discussed in the printed argument of defendant's counsel.

The plaintiff was permitted to testify, against defendant's objection, to the condition of the track, for the purpose of showing that he could not safely and without difficulty have reached the ground outside of the rails. The evidence, we think, was competent. It was plaintiff's duty, as soon as he could do so with safety, to leave the car, in order to couple the engine to the train. This he was required to do expeditiously, that there should be no delay. If he could have alighted outside of the rails, there would have been no danger. The evidence sufficiently accounts for his not attempting to do so. If he could not alight outside of the rails, he was justified, as we shall soon see, in attempting to reach the ground inside of the rails, if it could have been done in the exercise of reasonable care and caution. The purpose of the evidence was not, as defendant's counsel insists, to establish the negligence of defendant in failing to have the track in proper condition.

III. The plaintiff was permitted to testify, against defendant's objection, that when he left the car he thought the engine "had plenty of time to stop," and had stopped. The plaintiff had directed, by proper signal, the engineer to stop the engine. He believed, from the fact that the distance between the car and engine had increased to twelve or fifteen feet, that the speed of the engine was diminishing, and, according to the testimony of himself and the engineer, the engine had gone a distance sufficient to enable the engineer to bring it to a full stop. He was authorized by the law to trust in the care and diligence of the engineer, and to act in the belief that he had taken proper action to stop the engine. Beems v. The C., R. I. & P. R'y Co., 58 Iowa 150, 12 N.W. 222; Steele v. The Cen. R'y of Iowa, 43 Iowa 109. But if, notwithstanding, he knew the engine was approaching him at a dangerous speed, he would have been guilty of negligence in attempting to descend to the track, and he was not in that case justified in believing that the engine had stopped. But it must be remembered that, in the position he occupied, being right before the engine upon the moving car, he could rest his eye upon no object, either on the car or upon the ground, which would enable him to determine readily that the engine had not stopped. The forward movement of his body with the car, and the increasing separation of the car and engine, would, without the closest attention and reflection, after viewing the engine in its relation to objects upon the ground, induce the belief that the engine had stopped. He could not have determined in the exercise of due care that the engine had not ceased to move. He was authorized, therefore, to believe the engine had stopped, and he was not negligent in being mistaken in his belief. The evidence objected to was not in the nature of an opinion upon an important fact, as counsel for defendant claims, but affords proof that plaintiff was not negligent.

IV. The plaintiff testified that a piece of the bone of his fractured leg came from an ulcer caused by the injury. A woman who nursed him while he was confined to his bed was, against defendant's objection, permitted to testify that plaintiff at the time called her to him and exhibited to her a piece of bone which he declared he had just taken from the wound. The evidence is competent for...