Taylor v. Chi., R. I. & P. Ry. Co.

• Decision Date: 23 January 1919
• Docket Number: No. 32190.,32190.
• Citation: 170 N.W. 388,186 Iowa 506
• Parties: TAYLOR v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

186 Iowa 506

170 N.W. 388

TAYLOR

v.CHICAGO, R. I. & P. RY. CO.

No. 32190.

Supreme Court of Iowa.

Jan. 23, 1919.

Appeal from District Court, Polk County; Hubert Utterback, Judge.

Action to recover for personal injuries. Opinion states the issues and the facts. Directed verdict for the defendant. Plaintiff appeals. Affirmed.R. L. Parrish, of Des Moines, for appellant.

J. G. Gamble, F. W. Sargent, and J. H. Johnson, all of Des Moines, for appellee.

GAYNOR, J.

Plaintiff brings this action to recover damages which it is alleged he sustained by reason of the negligence of the defendant.

He claims that on the 24th day of January, 1915, he was in the employ of the defendant, as engineer, running an engine on a passenger train en route from Valley Junction, Iowa, to Trenton, Mo.; that in the discharge of his duty he was compelled to pass under a certain viaduct; that an abutment supporting the viaduct was built too close to the track, and rendered the place exceedingly dangerous to one operating an engine over the road; that, just before the accident, his attention was attracted by what appeared to be the noise of water escaping from the injector of the engine through the waste pipe; that he looked out of the window to observe the cause of the escaping water, and was struck on the head by the abutment and greatly injured.

The defendant for answer alleges two defenses:

That the plaintiff assumed the risk incident to the conditions of which he complains; that the abutment complained of was permanent and supported the viaduct over defendant's track, and had been built and located, as it was at the time of the accident, for a long time; that plaintiff knew of the location of the abutment and the distance between the abutment and the track, and knew, or in the exercise of ordinary care ought to have known, of the danger incident to striking the abutment in the event of extending his head outside of the cab window while the train was passing; that notwithstanding the fact that he knew of the abutment, knew of the location of the abutment and of the danger incident to passing the same with his head out of the window, he nevertheless did extend his head out of the window while passing, and in doing so assumed the risk of injury from the striking of his head against the abutment.

The defendant also pleads settlement.

Upon the issues thus tendered, the cause was tried to a jury. At the conclusion of the evidence, the court directed a verdict for the defendant, and plaintiff appeals.

We may assume for the purposes of this case that the defendant was negligent in having the abutment so close to the track, and that this rendered the place dangerous and unsafe. We may assume this without discussing the evidence.

[1] This brings us to a consideration of the defenses interposed, on both of which the burden of proof rests on the defendant. We do not mean that the defendant is required to establish its defenses by evidence introduced on its own behalf. They are sufficiently made out when a preponderance of the evidence submitted establishes them. To justify a directed verdict, however, they must be shown by the evidence, so clearly that reasonable minds, searching for the truth touching the controverted matter, cannot differ as to the conclusion that ought to be drawn from it. The defenses are established as a matter of law, and no question remains for jury consideration when the evidence introduced by the plaintiff, viewed from all the points from which human intelligence can approach and analyze it, leaves the ultimate fact upon which the defense is predicated so clearly established that honest minds, searching for the truth, cannot differ as to the ultimate fact. Then, and only then, is the court right in saying that the defenses are established, and that plaintiff must go out of court.

We will consider the first proposition on which the defendant predicates its right to be relieved of liability.

The evidence discloses that the plaintiff had been engineer on this road for four to five years; that this abutment was there and in the same place during all this time. He testified:

“The viaduct was there at the time I went to work. It had always been there. I had been passing it daily for a matter of three years. There was nothing to keep me from seeing the abutment. The last stop before reaching the abutment was Chariton. This was about three-quarters of a mile from the abutment. We were running at the time about 25 miles an hour. It was my duty to keep a sharp lookout ahead. I have no doubt that my fireman and myself had talked about this abutment before.”

He was asked these questions and gave the following answers:

“Q. Did you know of that abutment being close there? A. I had known of it, but at this particular time that did not enter into this at all. Q. Was the viaduct there when you first went by? A. Yes. Q. Was it there every time you went by up to the time of the accident? A. Yes, because it was there when I first began. Q. It was there all the time? A. I think so. That is my remembrance. Q. How often did you pass Chariton in the regular course of your work prior to the accident? A. On the daylight run twice daily, and on the night run once each 24 hours. Q. And about how long did you say you had been passing by Chariton every day, practically every day, passing by this viaduct, before you had this accident? A. Well I would say roughly a matter of three years. Q. You knew this viaduct was there, didn't you? A. Yes, sir. Q. You knew that this was supported by a concrete abutment on the right-hand side of your engine as you went south? A. Yes, sir. Q. Did you know the speed of your train that day? A. Yes, practically. Q. Who had control of the speed? A. I did. Q. You handled the throttle and brake valve and things that made it go fast or slow? A. Yes, sir. Q. You knew practically how fast you were going? A. Practically so. Q. Was it daylight when this accident occurred? A. It was. Q. Was there anything to keep you from seeing this abutment? A. Not a thing. Q. You had passed it practically every day for three years? A. I think I am safe in saying that. Q. You knew, didn't you, how far the abutment was from the place you stopped at the station at Chariton? A. Yes. Q. Now I will ask you, Mr. Taylor, if it isn't a fact that prior to the time of the accident you had ample notice that the west end of this viaduct would not clear a man very far out of the side of the cab window on one of the kind of engines you were using, and that you and your fireman had talked about it before? A. I have no doubt we did. Q. That condition had existed all the time that you ran down there, had it not? A. I think so.”

In a statement made by the plaintiff about a month after the accident, he said that there were no defects in or about the engine that had anything to do with the accident; that he had often noticed that this piling on the west end of the viaduct would not clear a man very far out of the cab window, and he had talked with the fireman about it before; that just before the accident he and the fireman had discussed the fact that this bridge was so close to the track on his side.

The fireman, who attended plaintiff on the trip, called for the plaintiff, testified:

“The accident happened in daylight. It was not storming or snowing. The abutment extended about 15 feet high. It was about 12 feet wide. I had noticed this abutment as I passed along over the road. There was nothing to keep me from seeing it. I had noticed that it was close to the track before the accident. It was plain to be seen.”

This is practically all the evidence bearing upon the conditions that existed at the time of the accident, and plaintiff's knowledge of the conditions.

The question that presents itself here is whether or not this evidence is sufficient to show, and does show, the two facts essential to sustain defendant's contention that the plaintiff waived the negligence, and assumed the added risk due to this negligence, by continuing to work without complaint and without promise on the part of the defendant to have the conditions remedied.

This action is under the federal Employers' Liability Act (Act Cong. April 22, 1909, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]), and assumption of risk is a defense, and defendant has pleaded it as a defense.

[2][3] It goes without saying that the servant assumes all the risks that are necessarily incident to the business, when the master has discharged his full duty to the servant in furnishing him a reasonably safe place to work and reasonably safe tools and appliances with which to do the work. These risks are necessarily incident to and inhere in the employment. These are unavoidable risks, intrinsic risks, and exist when the master has discharged all his masterial duties to the servant. For such risks the master is never liable, because it is no fault of his that they exist. He is not negligent in permitting them to exist. He owes no duty to the servant to dissipate them, for they cannot be dissipated. This kind of assumption of risk need not be pleaded.

[4] The disposition of this case requires the consideration only of those added risks which grow out of the negligence of the master; out of his failure to discharge his masterial duties to the servant. This is what may be termed the secondary and ulterior risk, not necessarily incident to the business, and exists only because of the failure of the master to discharge his duty to the servant. This is the kind of risk we are now considering. The assumption of this kind of risk must be pleaded and proven, if relied upon.

We may assume that the defendant company was negligent in permitting this abutment to stand in such close proximity to the track. We may assume that danger arose from its proximity to the track. The question then is: Did the plaintiff then assume the added risk involved in the conditions, thus negligently permitted, by continuing in...