Tibbitts v. Mason City & Ft. D.R. Co.

• Decision Date: 10 April 1908
• Citation: 115 N.W. 1021,138 Iowa 178
• Parties: C. A. TIBBITTS, Administrator, Appellant, v. MASON CITY & FT. DODGE R. R. CO., and CHICAGO GREAT WESTERN RY. CO
• Court: Iowa Supreme Court

115 N.W. 1021

138 Iowa 178

C. A. TIBBITTS, Administrator, Appellant, v. MASON CITY & FT. DODGE R. R. CO., and CHICAGO GREAT WESTERN RY. CO

Supreme Court of Iowa, Des Moines

April 10, 1908

Appeal from Pottawattamie District Court.-- HON.W. R. GREEN, Judge.

ACTION for damages resulted in a directed verdict for defendant, and judgment accordingly. The plaintiff appeals.-- Affirmed.

Affirmed.

Clem F Kimball, for appellant.

Saunders & Stuart, for appellees.

OPINION

LADD, C. J.

Daniel Clancy was killed October 27, 1903, while rendering services as a brakeman in the employment of the Mason City & Ft. Dodge Railway Company. That company was then using the rolling stock of the Chicago Great Western Railway Company, and this accounts for the two companies being joined as parties defendant. The general direction of the road is east and west, and at McClelland the house track is in front and immediately north of the depot, and beyond that is the main track. The side or switch track is south of it. The freight train pulled in from the East at about half past six o'clock p. m., stopping on the house track in front of the depot. The engine and one car were "cut off," and, after a couple of cars had been "picked up," these were being "shoved down" to the head end of the part of the train left standing. Clancy was on the ladder on the south side near the east end of the head car being backed, and, when within the distance of the length of one car and half of another from the standing car he stepped to the ground, and started "around in front of the moving car." The head brakeman, who was on the southwest corner of the head standing car, testified: "I saw him start around in front of the moving car. I think he was very nearly up to the rail by the looks of the lantern or stepped over the rail. I do not think he took a step after he got in front of the car." He also testified that he saw deceased carry a lantern in his right hand, and that he saw it go down to the right as he fell. Immediately thereafter the witness went "where he had been standing when his lantern fell," and "found him lying just outside the ties." His head was toward the east, and his lantern between the ties, immediately south of the rail, with bail flattened as though run over by a car wheel. The witness removed him out from the track. One Cramer was standing in the telegraph operator's room in the depot at the time, and, as the window set out somewhat, noticed Clancy's lantern as the engine backed, and saw it fly away from the car. He testified: "As I was looking out of the window, I saw a lantern on the car, and probably something else caught my eye, and I dropped my eyes, and looked up again, and saw a lantern flying away from the car. That is all I know." The conductor went to Clancy immediately upon being informed of the accident by the head brakeman, and, asking him how it happened, was told by him: "I went in to open the knuckle, and stumbled in that d--n gravel." On the second morning after the accident a witness discovered a little white wet spot on the rail near depression hereafter mentioned, and toward where the body lay, as though something had been mashed thereon. This is all the evidence bearing on the happening of the accident, save the proof of the nature of the injury. The anterior portion of the left foot across the instep and also the leg was crushed. The attending physician testified: "There was a bruise, the skin was not broken, extending up the inside of the limb, just beneath the scrotum, and a severe bruise above the hip joint, like a bloody tumor beneath the skin. The crushed portion was from two to four inches below the knee joint. The bone was broken in several fragments. You could push your finger through it anywhere. My opinion is that the force that produced this condition caught him on the inside of the heel and had gone up, because the broken tissue was on the inner side." The leg was amputated but the injured man survived but a few hours. Five or six feet west from where he was found there was a depression in the gravel extending out from the south rail and ties, about two feet long and eighteen inches wide, with the gravel slightly elevated at one side. This was about as deep as the thickness of a tie according to one witness, and about a foot deep, according to another, and the gravel had run into it from between the ties.

I. The negligence alleged is the leaving of this depression in the roadbed thereby rendering the place unsafe for the work required of deceased. That this ordinarily might constitute negligence on the part of the company is not questioned. Defendant explains this by saying that the roadbed was in course of construction, and was incomplete, and the defect was incident to such construction. Had this been conclusively shown, there would be ground for saying as a matter of law that the deceased assumed the risk. But the evidence indicated that, though the gravel was loose, containing considerable sand, the work of ballasting the tracks at that place had been completed, the material having been leveled, and tamped, and the company was engaged in filling the space between the tracks. This was done by unloading the gravel from the house track, and moving it out with scrapers. One witness testified that the depression looked as though made with a scraper, but that the surface was not rough at that place, having been smoothed some. There was no evidence that the unloading had occurred there, and another witness testified that the hole did not appear to have been made by a scraper, and that the gravel inside and outside of the rails had been leveled and surfaced all about that locality, so that it was a smooth place at which to stand or walk. The jury might then have found that the ballasting where the accident had occurred had been completed, and that, it so appearing to the employes, the defendant was negligent in leaving a hole such as that described at a point where they might reasonably expect the surface to be level. In other words, the defect was where the employes might reasonably have assumed the track to have been completed. Chicago & E. I. Ry. Co. v. Hines, 132 Ill. 161 (23 N.E. 1021, 22 Am. St. Rep. 515). The duty of the railroad company to keep its tracks in a reasonably safe condition for use by its employes has been sufficiently discussed in other cases. Sankey v. Railway Co., 118 Iowa 39; Brooke v. Railway Co., 81 Iowa 504; Fish v. Railway Co., 96 Iowa 702. See, also, Hollenbeck v. Railway Co., 141 Mo. 97 (38 S.W. 723, 41 S.W. 887); De Cair v. Railway Co., 133 Mich. 578 (95 N.W. 726); Missouri P. R. Co. v. Jones, 75 Tex. 151 (12 S.W. 972, 16 Am. St. Rep. 879). Whether deceased assumed the risk was, in view of the condition of the yard, for the determination of the jury.

II. It is also argued that, in any event, deceased must be held to have been guilty of contributory negligence. The car was equipped with a Turner coupler, which was so made that the knuckle could be opened with the lever. This lever was at the end of the car ten or twelve inches from the corner. To effect a coupling, the coupler on one of the cars must be opened, and it was the duty of the deceased to see that that...