Struble v. Burlington, C. R. & N. Ry. Co.

• Decision Date: 12 April 1905
• Citation: 103 N.W. 142,128 Iowa 158
• Parties: STRUBLE v. BURLINGTON, C. R. & N. RY. CO.
• Court: Iowa Supreme Court

128 Iowa 158

103 N.W. 142

STRUBLE

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

Supreme Court of Iowa.

April 12, 1905.

Appeal from District Court, Tama County; Obed Caswell, Judge.

Action for damages for a personal injury. In the main the facts are not involved in controversy. At the time of his accident and injury plaintiff was in the employ of defendant as a freight brakeman. The accident occurred in the yards of the defendant at Muscatine, and while the train crew to which plaintiff belonged was engaged in switching to make up a train destined for Cedar Rapids. The train crew consisted of a conductor, the engineer and fireman in charge of the engine, and two brakemen--one Moore, and plaintiff. The conductor was temporarily absent at the time, and the switching was being done by the engine crew and the two brakemen. The main line of the track runs nearly north and south, with a side track on the west. The latter connects with the main line in the usual manner by a switch. The rails of the side track diverge from the main track until a point is reached where passing cars will clear each other, and then run parallel with the main track. The switch was controlled from a stand located immediately adjacent to and on the west side of the track. At the time the engine was headed north, and had been backed in upon the side track, and there coupled to four freight cars. It then pulled north past the switch, and upon the main line, stopping so that the rear car was some two car lengths north of the switch. As the cars were being pulled past the switch, plaintiff went to the switch stand, turned the lever so as to disconnect from the side track and leave the main line free for passage. Moore, who had passed on with the cars, then uncoupled the two rear cars, when the engine was backed down, making a “kick” as it is called; that is, making a quick backward movement and then stopping, the momentum being sufficient to run the uncoupled cars down upon the main line past the switch. As such cars passed over the switch, plaintiff at once turned or threw the lever, thereby again making connection with the side track. As the engine stopped, the rear car, still attached thereto, was between one and two car lengths north of the switch. When the switch had been turned by plaintiff, Moore, who had remained with the cars still attached to the engine, at once uncoupled the rear car, and in response to his signal the engineer made a kick to run the car back in upon the side track. It appeared from the testimony of Moore given on the trial that as he cut the car off and it started back he glanced down the track, and realized it was likely that such car would collide with the cars on the main track. He at once called to plaintiff to catch the car, which we understand to mean to go upon it, and by means of the brake operated from the top control the movement thereof. In response to such call, plaintiff at once stepped over and met the car. The car was provided with an end ladder, the same being close to the side to the west, and this plaintiff took hold of, and proceeded to climb to the top. The two cars that were sent down the main track had not in fact proceeded quite far enough to clear a car passing in upon the side track, and as plaintiff got upon the car the corner thereof struck the corner of the north car standing on the main line, the impact causing him to lose his balance and to fall or be thrown from the top of the car to the ground. Such further facts as are material will be referred to in the course of the opinion. The case was tried to a jury, and from a verdict and judgment in favor of plaintiff the defendant appeals. Reversed.Carroll Wright, John I. Dille, and Willett & Willett, for appellant.

Charles A. Clark & Son and Struble & Stiger, for appellee.

BISHOP, J.

By a motion to direct a verdict in its favor, and again by motion for new trial, the defendant challenged the sufficiency of the evidence to make out a case for recovery on the part of plaintiff. The gravamen of plaintiff's action is negligence on the part of defendant, to which he did not contribute, and the allegations of the petition devoted to the subject may be summed up as follows: That defendant negligently and carelessly placed the two freight cars on the main track, and so near to the side track that the car plaintiff was ordered to catch could not pass along the side track without coming in collision therewith, the fact of the position of such cars being unknown to plaintiff; that defendant was further negligent in throwing the car which plaintiff was ordered to catch in upon the side track, and moving such car along the same while the cars placed upon the main track remained thereon so that said car would collide therewith; that defendant and its employés were negligent in ordering and requiring plaintiff to catch said car while the same was approaching a collision with the cars on the main track. The contention of appellant is that the record fails to disclose that the accident and injury complained of was proximately caused by negligence on its part; that, on the contrary, the evidence makes it clear that such accident was the direct result of a failure on the part of plaintiff to exercise ordinary care and to perform a known duty imposed upon him. In proceeding to determine the matter of controversy thus presented, we may begin by ascertaining what were the respective duties and responsibilities resting at the time upon the two men, Moore and the plaintiff, as far as disclosed by the evidence. And first as to Moore. We shall not go to the trouble of bringing forward the evidence in detail. It is sufficient to say that, viewed in the light most favorable to plaintiff, as we are required to do, a finding was warranted to the effect that Moore was in control of the work. In point of fact, he represented the conductor. He had...