Stearns v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 29 June 1914
• Docket Number: 29420
• Citation: 148 N.W. 128,166 Iowa 566
• Parties: ELMER STEARNS, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO., Appellee
• Court: Iowa Supreme Court

148 N.W. 128

166 Iowa 566

ELMER STEARNS, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY CO., Appellee

No. 29420

Supreme Court of Iowa, Des Moines

June 29, 1914

Appeal from Linn District Court.--HON. W. N. TREICHLER, Judge.

ACTION at law to recover damages for injuries received by plaintiff an employee of the Chicago, Milwaukee & St. Paul Railroad Company, due to a collision between a train on its road, with one operated by defendant on its line, at a crossing of the two within the city of Cedar Rapids. The case was tried to a jury, and at the conclusion of plaintiff's testimony the trial court directed a verdict for the defendant, based largely upon the thought that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff appeals.

Affirmed.

E. A Johnson and Rickel & Dennis, for appellant.

F. W Sargent and R. J. Bannister and Grimm & Trewin, for appellee.

OPINION

DEEMER, J.

The Chicago, Milwaukee & St. Paul Railway Company (which we shall hereafter call the Milwaukee Company) and the defendant, the Chicago, Rock Island & Pacific Railway Company (which we shall call the Rock Island), have main lines of track running to and through the city of Cedar Rapids, Iowa. They cross each other at or near the junction of Third street and Ninth avenue in that city, as shown by a plat introduced by plaintiff, which we here attach.

Plaintiff was employed by the Milwaukee Company as a switchman in its yards at Cedar Rapids, and on the day of the accident, which was on June 17, 1910, he was in control and charge of a crew consisting of himself, an engineer, fireman, and two other helpers, engaged in switching a refrigerator car to the freighthouse of his company, which was located some distance west of the Rock Island crossing. This car was attached to the tender of the engine, and was being pushed ahead of the engine; the engine itself running backward. Plaintiff had mounted the car, and was sitting on the right-hand side farthest away from the engine, taking this position, as he says, to keep a lookout. The engineer and fireman were depending upon signals either from the plaintiff or his helpers, one of whom was on the ladder at the forward end of the car, and the other on the other end of the car next to the tender of the engine. The fireman being on the left-hand side of the engine as it was being backed, would naturally, and did, in fact, get the signals made by plaintiff, who was in best position to see and observe anything dangerous.

[SEE PLAT IN ORIGINAL]

As will be observed from the plat, the Milwaukee train, in coming from the east or northeast toward the crossing of the Rock Island, approached the said crossing upon rather a sharp curve, the degree of which is not given, but which is approximately shown on the plat. On the east side of Third street and the north side of Ninth avenue, and at the northeast corner of the junction of the two streets, is a store building; the location and approximate height thereof being shown on the plat. This building obstructed the view of a train coming from the north on the Rock Island tracks. The different ranges of vision are also approximately shown by the plat.

As plaintiff was approaching the crossing, he being, in fact, in charge of the train, a Rock Island train was also approaching the same crossing from the north. This train was made up of a switch engine and eight or nine cars, which were being switched back and forth in the yards. The switch engine was attached to the cars at the head end, and it also was being run backward, and, the testimony tends to show, at a great rate of speed, just prior to the accident; some of the witnesses say at the rate of twenty or twenty-five miles per hour. The testimony also tends to show that there was no warning given by the engineer or fireman of the Rock Island engine, of its approach to the crossing, by the sounding of the whistle or the ringing of a bell. There was an ordinance of the city providing that no engine or train should be run within the limits of the city at a greater speed than eight miles per hour, and there is also a statute of the state providing that:

All trains run upon any railroad in this state which intersects or crosses any other railroad upon the same level shall be brought to a full stop at a distance of not less than two hundred nor more than eight hundred feet from the point of intersection or crossing, before such intersection or crossing is passed, except as otherwise provided in this chapter. Any engineer violating the provisions of this section shall forfeit one hundred dollars for each offense, to be recovered in an action in the name of the state for the benefit of the school fund, and the corporation on whose road such offense is committed shall forfeit the sum of two hundred dollars for each offense, to be recovered in like manner.

There is ample testimony tending to show that the employees of the Rock Island Company were violating both the ordinance and the statute before quoted, and enough to take the case to the jury upon the question of defendant's negligence, independent of statute, in approaching the crossing at such a rapid rate of speed without giving any warnings or signals. See, also, section 2072 of the Code with reference to signals.

We may say in this connection that, notwithstanding some erroneous rulings, which might have had some bearing on the question of defendant's negligence, there was enough without this testimony to show defendant's negligence, and we do not consider these rulings at this time for that reason. This eliminates, at least for the time being, several of the points made for the plaintiff in the briefs filed by his counsel.

II. As we view it, there are but two debatable propositions in the case, although there are some incidental questions arising on each of these propositions. Some of the agents of the Milwaukee Company negotiated a settlement with the plaintiff on the basis of the payment of $ 500 by the Milwaukee Company and a like amount by the Rock Island. The Milwaukee Company paid the $ 500, but the Rock Island never paid the amount which the Milwaukee agents said it would. There was no claim made against the Milwaukee Company by the plaintiff, and no negligence on its part appears in the record.

As we understand it, it undertook the settlement pursuant to a rule or understanding between the two companies, to the effect that each would look after injuries to its own employees, at least in the city of Cedar Rapids, where injuries resulted to them as a result of the negligence of either. Whether or not this rule was known to plaintiff, we are not fully advised, but, assuming that it was, plaintiff agreed to settle on the basis of $ 1,000, which has not been paid him, and he has not had satisfaction for his injuries. Whether or not in such circumstances the Rock Island Company, which is solely responsible for the injuries, may rely upon the payment made by the Milwaukee Company under the arrangement between the two companies, and insist that plaintiff cannot recover in this action without refunding to the Milwaukee Company the amount paid him by that company, is a question of much doubt, but one which need not now be decided; because in any event, under the testimony adduced, a jury would have been justified in finding that the settlement or compromise was made through the fraud and misrepresentations of the agents of the company negotiating it; plaintiff at the time being sorely sick in mind and body. See Kelly v. R. R. Co., 138 Iowa 273, 280, 114 N.W. 536; Coles v. R. R., 124 Iowa 48, 99 N.W. 108; Kelty v. McPeake, 143 Iowa 567, 121 N.W. 529.

That there was no settlement and payment such as to satisfy the claim, see Snyder v. Tel. Co., 135 Iowa 215, 112 N.W. 776; Miller v. Beck & Co., 108 Iowa 575, 79 N.W. 344; Turner v. Hitchcock, 20 Iowa 310; Bell v. Perry, 43 Iowa 368.

III. As bearing upon the other question of plaintiff's contributory negligence, we quote, in addition to sections 2072 and 2973 of the Code already referred to, or set out, the following:

Code Section 2082: No corporation, company or person operating a line of railroad in the state shall run any train of cars that shall not have therein a sufficient number of cars with some kind of efficient automatic or power brake to enable the engineer to control the train without requiring brakemen to go between the ends or on the top of the cars to use the handbrake.

And also the following federal statute, taken from 32 Stat. at Large, 943, section 2, reading as follows:

Whenever, as provided in said act, any train is operated with power or train brakes, not less than fifty per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power-braked cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of said act, the Interstate Commerce Commission may, from time to time, after full hearing, increase the minimum percentage of cars in any train required to be operated with power or train brakes which must have their brakes used and operated as aforesaid; and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to the like penalty as failure to comply with any requirement of this section.

Pursuant to this section the Interstate Commerce Commission, on June 6, 1910, promulgated the following order:

It is ordered that on and after September 1, 1910, on all railroads used in interstate commerce, whenever, as required by the Safety Appliance Act as amended March 2, 1903, any train is operated with power or train...