Sedgwick v. Ill. Cent. R. Co.

• Decision Date: 21 December 1888
• Citation: 76 Iowa 340,41 N.W. 35
• Parties: SEDGWICK v. ILLINOIS CENT. R. CO.
• Court: Iowa Supreme Court

76 Iowa 340

41 N.W. 35

SEDGWICK

v.ILLINOIS CENT. R. CO.

Supreme Court of Iowa.

Dec. 21, 1888.

Appeal from district court, Black Hawk county; C. F. COUCH, Judge.

Action by W. L. Sedgwick against the Illinois Central Railroad Company, for personal injuries to plaintiff's assignor, H. H. Oakes. At the close of plaintiff's evidence, the court instructed a verdict for defendant, which was returned, and judgment rendered thereon. Plaintiff appeals. For opinion on former appeal, see 34 N. W. Rep. 790.O. C. Miller, for appellant.

W. J. Knight, H. B. Fouke, and J. L. Husted, for appellee.

ROBINSON, J.

Most of the material facts involved in this case are stated in the opinion rendered on a former appeal. See 73 Iowa, 158, 34 N. W. Rep. 790. On the second trial in the district court the agreement between Oakes, the assignor of plaintiff, and the defendant, under which Oakes was employed, was introduced in evidence. This contains the following: “It is dangerous to uncouple or attempt to place links or pins in draw-bars while cars are in motion, and this is strictly forbidden.” This agreement is admitted, but it is insisted on the part of appellant that the train was not in motion when Oakes stepped between the tender and car to make the uncoupling; that he was then acting in the line of his duty; that the engineer had no right to move the train until he gave the signal; that he had a right to rely upon the supposition that the train would not be moved until he gave the signal; that he gave no signal; that the train was negligently started without a signal, and without notice to him; that he was unable to uncouple the car promptly by reason of the fact that a large pin had been used in making the coupling; and that he was injured by reason of the negligent moving of the train. The evidence given tends to support these claims. The evidence also shows that the pin in question was of a kind frequently used by defendant. Oakes testified that when the train began to move his attention was so occupied in the attempt to remove the pin that he did not think of the cattle-guard until he was in it. It is contended by appellant that it cannot be said as a matter of law that because Oakes failed to recollect the cattleguard at once when the train was put in motion, he was guilty of contributory negligence, and that there was error in not submitting that question to the jury.

Much stress is laid upon the fact that the train was put in motion wrongfully, and that up to that time he was engaged in the strict performance of his duties. This may be conceded, but there remains to be answered the question: Did Oakes exercise due care in remaining between the tender and car after the train was put in motion? Appellant says this was for the jury alone to answer. Whether it was or not depends upon the facts of the case as disclosed by the evidence, and not upon the conclusions which Oakes draws from them. When the train was started Oakes knew that it was dangerous, and a violation of a rule of defendant, and of his agreement in entering its employment, to remain where he was. He knew the location of the cattle-guard, and had passed over it but a few moments before....