Sedgwick v. Ill. Cent. R. Co.

• Decision Date: 26 October 1887
• Parties: SEDGWICK v. ILLINOIS CENT. R. CO.
• Court: Iowa Supreme Court

73 Iowa 158

34 N.W. 790

SEDGWICK

v.ILLINOIS CENT. R. CO.

Supreme Court of Iowa.

October 26, 1887.

Appeal from circuit court, Blackhawk county.

The plaintiff, as assignee of H. H. Oakes, brought this action to recover damages for a personal injury sustained by said Oakes while in defendant's employ as a brakeman on one of its trains. There was a verdict and judgment for plaintiff. Defendant appealed.W. J. Knight and J. L. Husted, for appellant.

O. C. Miller and H. C. Heminway, for appellee.

REED, J.

Oakes received the injury complained of while attempting to uncouple a car from the tender of the engine. The allegations of negligence contained in the petition are that the pin used to couple the car to the engine was too large, and fitted too tightly in the link to enable Oakes to readily pull it out, and was therefore defective, and unsuited to the purpose for which it was used. That he, without any knowledge as to the condition and size of the pin, and without any fault or negligence on his part, attempted to uncouple the car from the engine, and, while so engaged between the engine and car, the engineer negligently began to back the engine, without waiting for the usual and customary signal to be given by Oakes to indicate that he was ready therefor, and without giving any signal or notice to him of his intention to move the engine, and that thereby he was pushed, carried, and crowded along the track to a cattle-guard, into which he fell, and was run over, and suffered the injuries complained of. The proof was that Oakes went between the engine and car while they were standing still to make the uncoupling. When he attempted to remove the pin, he discovered that it was so large, and fitted so tightly into the link, that it could not readily be removed. While he was working with it, and attempting to remove it, the engineer, without giving any signal or notice of his intention to move the engine, and without having received any signal from Oakes to move it, began to back it and the car towards the switch by which they intended to run the car onto the side track. Oakes walked along between the engine and car as they moved, continuing his efforts to remove the pin. The cattle-guard is about 15 feet from the point where he went between the car and engine, and when he reached it he fell into it, and was run over by the tender, and seriously and permanently injured. He knew of the existence of the cattle-guard, and had passed over it on foot a number of times within a few minutes before the accident. But he testified that his attention was so absorbed in his efforts to remove the pin, that he forgot the fact that he was approaching it. It was a common practice on defendant's road to uncouple cars while they were in motion. But the movements of the train, when uncouplings are being made, are under the direction of the brakemen who are charged with the duty of making them. The engine and car were moving at the time at about the speed at which a man ordinarily walks, and there was nothing to prevent Oakes from stepping out from between them at any time before he reached the guard.

1. The first point urged is that the proof does not sustain the allegations of the petition in this: that, while the averment is that Oakes was pushed, carried, and crowded along the track to the cattle-guard by the moving engine and car, the proof is that he voluntarily remained between them, and walked to the guard. It is true, perhaps, that the words of the petition, taken literally, imply the application of force by the moving bodies which had the effect to carry him to the cattle-guard. But it was not essential...