Swaim v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 17 January 1919
• Docket Number: 32972
• Citation: Swaim v. Chicago, Rock Island & Pacific Railway Co., 174 N.W. 384, 187 Iowa 466 (Iowa 1919)
• Parties: O. C. SWAIM, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

174 N.W. 384

187 Iowa 466

O. C. SWAIM, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 32972

Supreme Court of Iowa, Des Moines

January 17, 1919

OPINION ON REHEARING OCTOBER 22, 1919.

Appeal from Appanoose District Court--C.W. VERMILION, Judge.

ACTION at law to recover damages for personal injury.There was a trial to a jury, and verdict and judgment for plaintiff.The defendant having taken an appeal to this court, an affirming opinion was handed down at the January term, 1919.SeeSwaim v. Chicago, R. I. & P. R. Co.,170 N.W. 296.Thereafter, a petition for rehearing was granted, and the cause has been resubmitted, with additional arguments.

Affirmed.

Porter & Greenleaf, F. W. Sargent, and J. G. Gamble, for appellant.

Howell Elgin & Howell, for appellee.

WEAVER, J. LADD, C. J., EVANS, GAYNOR, PRESTON, SALINGER, and STEVENS, JJ., concur.

OPINION

WEAVER, J.

The plaintiff was a member of a section gang in the employ of the defendant.In this labor, he was associated with one Amberg and others, and in their work they were under the command or direction of a foreman.On the occasion in question, plaintiff and Amberg, and perhaps others, were engaged in ballasting or repairing the track, each using what is spoken of in the record as a "tamping pick."This tool was made somewhat after the fashion of the common pick, except that, while one prong was drawn to a comparatively sharp point, the other was finished with a squared or flattened head.Plaintiff and Amberg were about eight feet apart, using the blunt ends of their picks to drive the broken stone, used for ballasting material, under the cross-ties.The method adopted by them in this respect appears to have been usual and proper in such work.It is the claim of the plaintiff that, while so employed, a stone was broken or shattered under a blow by the pick in Amberg's hands, and that a fragment of such stone, so driven through the air, struck him in the eye, causing him serious injury.He charges the defendant with negligence in respect to this injury, as follows: that it was the defendant's duty to furnish to its workmen reasonably safe and suitable tools for the work they were required to perform, and to keep the same in suitable repair; that it failed in this duty with respect to the tamping pick supplied to Amberg, by the use of which plaintiff claims to have been injured; that said pick had become worn and rounded upon its blunt or squared end, by reason of which a stone broken under its stroke had a tendency to fly off, and thereby become a source of danger to anyone within reach of the flying fragments; that this condition was known to the foreman having charge of the work and of the men; and that the need of repair had been expressly called to the attention of the foreman, and he had promised to attend to it promptly, but had failed so to do when the injury occurred.

The defendant took issue on the charge made in the petition, denying negligence and pleading that the risk of injury because of the condition of the pick was assumed by the plaintiff.It appears in evidence that these picks become rounded or beveled with use, and it was the practice of the foreman to gather them up, at intervals of about 30 days, and send them to the company's shops for repair.It is also shown, without material dispute, that, when such worn and impaired tools are used in tamping, the danger from flying fragments of stone is materially increased.The fact that the pick in question was worn and out of repair is not seriously denied, nor can it be contended that defendant did not know the fact.The foreman concedes that Amberg had complained of the pick used by him.It also appears that it was the custom of the foreman himself to take charge of the tools at the end of each day's work, and reissue them on the following day; hence, they were constantly under his personal observation and inspection.Indeed, we do not understand appellant to contend that the record is without evidence to sustain a finding that it was negligent, but it denies legal liability, on the grounds: First, that, even if there was negligence on defendant's part, there is no evidence on which to find that it was the proximate cause of plaintiff's injury; and, second, that, in any event, plaintiff must be held to have assumed the risk of injury from the use of the tamping pick; and, third, that the tamping pick described is a simple tool, requiring only muscular strength in its use, and plaintiff must be held to have known the dangers, if any, incident to its use, and that, if there was any negligence in failing to make repairs, such need was clearly apparent to him, and he cannot be heard to say that, by remaining in the defendant's service, he did not take upon himself the risk arising therefrom.

I.Upon the question of proximate cause, we are satisfied that, if the defendant may be held chargeable with negligence with respect to the admittedly defective condition of the pick and its use in such condition, then the evidence is quite sufficient to sustain a finding that such neglect was the proximate cause of the injury.Practically all of the witnesses on both sides who were experienced in such work and the use of such tools unite in saying that, while the implement is in proper condition, there will be some breaking of stone under its blows, yet the fragments do not, as a rule, fly to any considerable distance, and the course of their flight, if any, is low or downward; but, as the striking face of the pick becomes worn and beveled or rounded, the quantity of fragments so produced is increased, and their course through the air is at a higher angle.The increase in the production of flying fragments by the use of a round-faced pick, as compared with a pick in proper condition, is placed by some of the witnesses in the proportion of four to one; while others say, "a half more."True, the effect of this testimony was sought to be weakened by cross-examination, but how far its weight or credibility was thereby affected was for the consideration of the jury.Proximate cause is not always capable of direct proof.Indeed, more often than otherwise, it is a matter of deduction or natural inference from the circumstances appearing in evidence.It is no answer to the plaintiff's claim in this respect to say that fragments of rock will sometimes fly under the impact of a pick in perfect condition, and that it is, therefore, possible for plaintiff to have received the injury of which he complains, even if the pick in question had not been defective.Absolute certainty of proof is not required, and indeed is rarely obtainable.As it has been stated by this court:

"Proximate cause is probable cause; and the proximate consequence of a given act or omission, as distinguished from a remote consequence, is one which succeeds naturally, in the ordinary course of things."Watson v. Dilts, 116 Iowa 249, 252, 89 N.W. 1068.

See, also, 1 Thompson on Negligence, Section 156.And this is true although the result produced may not have been anticipated.Osborne v. Van Dyke, 113 Iowa 557, 85 N.W. 784.Nor will the fact that some other cause operates with the defendant's negligence to produce the injury relieve the defendant if the injurious result is traceable in some material degree to his want of due care.Gould v. Schermer, 101 Iowa 582, 70 N.W. 697;Langhammer v. City of Manchester, 99 Iowa 295, 68 N.W. 688.

It is true that if, under all the proved circumstances, the conclusion that the injury was the proximate result of defendant's negligence is no more reasonable or probable or likely than that it was brought about by some other cause, for which the defendant is not responsible, then, of course, the plaintiff has failed to establish a fact without which he cannot recover.No well-considered precedent goes any further than this, and the theory sometimes urged in cases involving this question, that proof of proximate cause by circumstantial evidence must clearly and satisfactorily exclude the possibility of all other causes, is wholly untenable.We had occasion to consider this question in Lunde v. Cudahy Pack. Co., 139 Iowa 688, 117 N.W. 1063, where we said:

"While plaintiff cannot recover upon a case which does no more than show a possibility that the injury is chargeable to the defendant's negligence, he is not bound to prove either the negligence or the proximate cause beyond a reasonable doubt.Such a rule would work an absolute denial of justice in a great majority of cases.Proximate cause is, under all ordinary circumstances, a question of fact; and, where it depends upon circumstances from which different minds might reasonably draw different conclusions, or where all the known facts point to the negligence of the defendant as the cause, the submission of the question to the jury affords no ground for assignment of error by such defendant.* * * If the plaintiff do no more than to show a state of facts which is equally consistent with the theory of due care on the part of the defendant, then, of course, he must fail.Neal v. R. R. Co., 129 Iowa 5, 105 N.W. 197;Huggard v. Refining Co., 132 Iowa 724, 109 N.W. 475;O'Connor v. R. R. Co., 129 Iowa 636, 106 N.W. 161.But he is not bound to exclude the possibility that the accident might have happened in some other way, for that would be to require him to make his case beyond a reasonable doubt.He is only required to satisfy the jury, by a fair preponderance of the evidence, that the injury occurred in the manner he contends it did."

Of course, a party charged with negligence is not to be held liable in damages upon any mere conjecture that his negligence was the proximate cause of an injury, but when there is evidence from which such...