Reed v. Burlington, C. R. & N. R. Co.

• Decision Date: 24 June 1887
• Citation: 72 Iowa 166,33 N.W. 451
• Court: Iowa Supreme Court
• Parties: REED v. BURLINGTON, C. R. & N. R. CO.

72 Iowa 166

33 N.W. 451

REED

v.BURLINGTON, C. R. & N. R. CO.

Supreme Court of Iowa.

June 24, 1887.

Appeal from circuit court, Tama county.

The plaintiff was a brakeman on the defendant's road. He brought this action to recover damages for a personal injury which he sustained in coupling cars at Columbus Junction. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

SEEVERS, J., dissenting.

S. K. Tracy, for appellant.

Stivers & Loutham and J. W. Willett, for appellee.

ROTHROCK, J.

1. The plaintiff was hind brakeman upon a freight train running between Cedar Rapids and Burlington. On the trip upon which the injury was received, the train left Cedar Rapids, going south, at about 3 o'clock in the morning. The train was made up at Cedar Rapids immediately before it started on the road. There was a Star Union Line car placed at the head of the train, and coupled to the locomotive tender. The plaintiff came into the train-yard after the train was made up. When it reached Columbus Junction the engine was cut off, and went upon a side track for some purpose, and then came back, and the plaintiff went between the tender and the Star Union car to couple them, when he received the injury of which he complains. He claims that the Star Union car was broken and defective on account of the absence of what is called a “follow plate” under the car, and by which the draw-bar is prevented from sliding back; and that, by reason of said defect, the draw-bar was driven back, and shoved under the car so far that there was not sufficient space left between the car and the tender of the locomotive to safely make the coupling; and that in consequence thereof, he was caught between them, and permanently injured in his hips.

The defendant claimed that there was no such defect in the car, and that the plaintiff, at the time he was injured, was knowingly violating an express printed rule of the company in not using a stick to make the coupling, and that this violation of the rule increased his danger, and that, by such disobedience, he contributed by his own negligence in causing the accident.

The fact that the car was out of repair, so that the draw-bar would slide back under the car, ought not to be a matter of serious dispute. To say the least, the jury were fully warranted in finding, from the evidence, that such was its condition. It is true that other persons, before and after the accident, succeeded in coupling the car, but the jury may have fairly found that it was done with a knowledge of the defect. Of course, the question whether it could be safely coupled to another car depended altogether upon the force with which the other car was bunted against it.

It appears from the evidence of one Montgomery, who was a switchman in the yards at Cedar Rapids, and who had charge of the switch crew in making up trains, and under whose supervision the train in question was made up, that he discovered that there was no follow plate on the back part of the drawbar, and that the draw-bar would shove back until its rim would strike the deadwood. He further testified that, upon making the discovery, he went to a switch shanty in the yards, in which there was a telephone used for the purpose of communicating with the general office and shops, and he called the general office, and stated to some one who answered his call that the car was in bad order, and the person answering his call inquired, “In what way?” and the witness told him that the back plate was gone, and received the reply that “if she will hold together, send her off.” It is claimed that the testimony as to the communication by telephone should have been excluded, because it was with some unknown person, and ought not to bind the defendant. It appears that the telephone was placed in the yards for the very purpose of communicating with the office. It was the means of communication provided by the defendant; and in the absence of any showing that some officious intruder had taken up quarters in the office, and assumed to transact the business of the company, it ought to be presumed that the communication was made with...