Quinn v. Chi., R. I. & P. Ry. Co.
| Decision Date | 15 December 1898 |
| Citation | 77 N.W. 464,107 Iowa 710 |
| Parties | QUINN v. CHICAGO, R. I. & P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Scott county; P. B. Wolfe, Judge.
Action at law to recover damages for the death of the plaintiff's intestate, alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Reversed.Cook & Dodge, for appellant.
Ambrose P. McGuirk and J. M. Beardsley, for appellee.
The decedent, Albert L. Smith, worked for the defendant, as a brakeman, at intervals, for 10 years, and almost constantly for 5 years preceding his death. All of his service was performed on the railway which extended from Rock Island through Muscatine, and during the last year of his life his run was with freight trains over the railway between Rock Island and Eldon, which passed through Muscatine. It was the custom of the crew of his train to do work every other day on the westward run in the railway yard at Muscatine, and over and near a switch in the main line near the west end of the yard. At about 4 o'clock in the morning of November 3, 1891, before it was daylight, the decedent's train reached Muscatine from the east, and commenced to cut off cars near the switch described. Eight or nine cars were cut off, and run onto a side track eastward. The remainder of the train was then run westward on the main line until the rear end had cleared the switch, when it was stopped. Smith, who was rear brakeman, turned the switch for the main line, and the train was backed eastward; and he went westward a short distance on the south side of the track, and then went between the two cars which were to be uncoupled, while the train was moving. After a few moments, but before the cars were uncoupled, his lantern was seen to fall outside the track, the train was stopped, and he was found in an unconscious condition. His left leg had been severed from the body, and other injuries had been inflicted. He did not regain consciousness, and died within half an hour. The petition alleges that the switch was defectively constructed, and was not in good condition, and that in consequence of the defective and bad condition, and without negligence on the part of the decedent, one of his feet was caught in the switch, and held until he was run over and injured as stated. The petition also alleges that the defendant was negligent in that the engine attached to the train in questioned was out of repair, and not properly under the control of the engineer, and in not stopping the train within a reasonable time after the danger of the decedent was known. Negligence in other particulars is also alleged, but no evidence to show such negligence was offered. The defendant denies negligence on its part, pleads contributory negligence on the part of the decedent, and avers that the decedent well knew the character and condition of the switch, and with that knowledge remained in the service of the defendant; that the danger he incurred by reason of the condition of the switch was a risk incident to the service which he contracted to perform, and which he accepted with full knowledge of it; and that he incurred a risk by going between moving cars to uncouple them, which was in violation of a rule of the defendant which was known to him.
1. The fifth paragraph of the charge to the jury is as follows: The appellant complains of this paragraph on the ground that it ignored the defense pleaded,--that the decedent, with knowledge of the actual condition of the switch, remained in the employment of the defendant, and assumed the risk incident to its condition. We think this complaint is well founded. The evidence shows, without contradiction, that the decedent had worked over and about the switch in question for many years, that he had done so hundreds of times within a year preceding the accident, and that the condition of the switch and its surroundings was unchanged during that time. Therefore there was evidence to sustain the alleged assumption of risk, but that plea was ignored by the part of the charge in question. It is true that in another paragraph the court did instruct the jury in regard to the assuming by the decedent of the risk, but as the fifth paragraph instructed the jury, in plain terms, to return a verdict for the plaintiff, if the statements set out were proven, it was to that extent in conflict with the other paragraph, and of a...
To continue reading
Request your trial