Thoman v. Chi. & N. W. Ry. Co.
| Decision Date | 17 October 1894 |
| Citation | 92 Iowa 196,60 N.W. 612 |
| Court | Iowa Supreme Court |
| Parties | THOMAN v. CHICAGO & N. W. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Tama county; John R. Caldwell, Judge.
Plaintiff states as his cause of action that while in the employment of the defendant as a switchman in its yards, at Tama City, he was ordered by his foreman, the yard master, Montgomery, to go out on a train of cars as a brakeman; that, in obedience thereto, he went on said train, the same being loaded with ties for distribution along the track, and that, about two miles out, the employés commenced unloading said ties; that, while so engaged, said foreman, then in charge of said train, ordered plaintiff to proceed from the rear end of said train to the front, and flag an incoming train; that he started to do so, and while passing the car from which the ties were being unloaded, “without any carelessness or negligence on the part of plaintiff, the said employés, without warning, carelessly and negligently threw from said car a large and heavy tie, and with the same struck plaintiff on the head,” seriously injuring him, to his damage. The defendant answered, denying generally; and upon these issues a verdict and judgment were entered for the plaintiff. Defendant appeals. Reversed.Hubbard & Dawley, for appellant.
Struble & Stiger, for appellee.
1. Appellant presents, among other grounds for reversal, the claim that, by the uncontroverted evidence, the plaintiff is shown to have been guilty of such contributory negligence as defeats his right to recover. There is no material conflict in the evidence as to how the accident occurred, and the facts shown are substantially as follows: Plaintiff was in the employ of the defendant as a switchman in its yards at Tama City, performing his duties under the direction of Mr. Montgomery, the yard master. On the day the plaintiff was injured, he, in obedience to the order of Mr. Montgomery, went with the switching crew, of which he was one, in charge of a train composed of the switch engine, a coal car loaded with rails, and a box car loaded with ties, north from Tama City, to distribute rails and ties at points along the line, to be used by the sectionmen in repairing the track. The train was in charge of Mr. Montgomery, as conductor, and, on arriving at the place of the accident, was stopped; and three sectionmen, under the direction of Mr. Gadbury, section foreman, commenced to rapidly throw out ties through the east door in the middle of the box car. Gadbury stood on the ground on the north side of the door, to see that the ties sufficiently cleared the track. Plaintiff's duties on the train were those of hind brakeman, his place being in the rear end of the box car. When the train stopped, Montgomery passed from the engine along the east side of the train between the unloaded ties and the fence to the rear, and, on reaching the box car, called the plaintiff, and told him to...
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