Rayburn v. Cent. Iowa Ry. Co.

Decision Date19 December 1887
Citation35 N.W. 606,74 Iowa 637
CourtIowa Supreme Court


Appeal from district court, Mahaska county.

Action to recover for personal injuries sustained by plaintiff, N. B. Rayburn, while attempting to go upon a car attached to a train drawn by an engine on defendant's railroad. There was a judgment upon a verdict for plaintiff. Defendant appeals.Anthony C. Daly, for appellant.

Sampson & Brown and John F. Lacy, for appellee.


1. The evidence shows that plaintiff was employed as a section-hand upon defendant's railroad, and while engaged in removing snow and ice from the track a train passed upon the road, wherein were a number of cars loaded with slack to be drawn to another place. Plaintiff and the men working with him were directed by the conductor and others upon and in charge of the train to get upon the cars and accompany them. It was the purpose to employ plaintiff and the other section-men in unloading the slack. The train was not stopped, and some of the section-hands requested those in charge of the train to stop it, but were informed that, if stopped, the train could not again be started. Thereupon plaintiff attempted to get upon one of the cars. By reason of a quick movement or “jerk” given to the train, and the snow upon the track, plaintiff was thrown down, and received a severe injury to one of his knees, which he claims is permanent.

2. Counsel for defendant insists that the conductor and others who ordered plaintiff to get upon the train were not negligent, for the reason that the train was moving so slowly that plaintiff could have gone upon the cars in entire safety. He again insists that plaintiff was not bound to get on the train until it stopped, and, if it was negligent in the conductor to order plaintiff to get upon the car, it was negligent in plaintiff to attempt it, and he urges that defendant is not chargeable with negligence, and that plaintiff is chargeable with contributory negligence. The facts of the case do not authorize the conclusion that, as a matter of law, either plaintiff or defendant is guilty of negligence. The question of the care of each was for the jury to determine, not for the court; and it cannot be truthfully said that there was a failure of evidence authorizing the jury to find negligence on the part of defendant, and due care on the part of plaintiff. The evidence is discussed at considerable length by defendant's counsel, to support his position to the contrary. It would be profitless to occupy the time required to review the evidence on this point, which could only be done in many pages.

3. If, under other circumstances, it would have been negligence in the plaintiff to attempt to get on the car while it was in motion, it was not negligence for him to do so when required by the order of the conductor and others having charge of the train. Fransden v. Railway Co., 36 Iowa, 372;Cooper v. Railway, 44 Iowa, 134;Pyne v. Railway Co., 54 Iowa, 223, 6 N. W. Rep. 281.

4. Counsel insists that plaintiff is not authorized to maintain this action for the negligence of his co-employes under Code, § 1307, for the reason that such negligence was in no manner connected with the use and operation of the railroad. It must be remembered that plaintiff was required to go upon the train for the purpose of aiding in unloading the cars. The employment and duties of plaintiff were identical in character with those of plaintiffs in Schroeder v. Railway Co., 47 Iowa, 375;McKnight v. Railway Const. Co., 43 Iowa, 46,--and unlike those of plaintiff in Fransden v. Railway Co., 36 Iowa, 372;Pyne v. Railway Co., 54 Iowa, 223, 6 N. W. Rep. 281;Crowley v. Railway Co., 65 Iowa, 658, 20 N. W. Rep. 467, 22 N. W. Rep. 918; and Farley v. Railway Co., 56 Iowa, 337, 9 N. W. Rep. 230. Following the doctrines of these cases, we hold that the plaintiff may maintain his action for injuries resulting from the negligence of an employe of the defendant engaged in operating the train upon its road.

5. Counsel insists that Code, § 1307, just cited, is in conflict with the fourteenthamendment to the constitution of the United States. This precise question was determined adversely to counsel's position in Bucklew v. Railway Co., 64 Iowa, 603, 21 N. W. Rep. 103. We have no ground for doubting the correctness of our decision in that case, which is brought to our attention in the argument of counsel.

6. It is insisted that the verdict for...

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