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

• Citation: 94 Iowa 256,62 N.W. 761
• Court: United States State Supreme Court of Iowa
• Decision Date: 05 April 1895
• Parties: TOBEY v. BURLINGTON, C. R. & N. RY. CO.

94 Iowa 256

62 N.W. 761

TOBEY

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

Supreme Court of Iowa.

April 5, 1895.

Appeal from district court, Linn county; J. H. Preston, Judge.

Action to recover for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.S. K. Tracy and J. C. Leonard, for appellant.

Rickel & Crocker, for appellee.

KINNE, J.

The petition in this action is in two counts. The cause of action, as stated in the first count, is in substance as follows: That on June 7, 1892, the plaintiff was in defendant's employ as a track repairer or section man, and was engaged, under the direction of defendant, in the line of his duty upon and near the tracks of the defendant, at and near C avenue crossing in the city of Cedar Rapids, and in defendant's switch yards, and was necessarily, and in the performance of his duty, upon and near the railway and switch at and about said place. It is charged that while the plaintiff was thus engaged, and in the exercise of due care on his part, and in getting and remaining out of the way of danger of one of its switch engines approaching on the track where he was working, the plaintiff was struck, knocked down, and run over, and his left arm crushed so as to render amputation necessary, and that he was otherwise cut and bruised by some cars operated and run by defendant in a grossly careless and negligent manner. The acts of negligence alleged are as follows:

1. In kicking said cars along its tracks, detached from the engine, at a speed of 8 or 10 miles an hour, which speed was unlawful, and in violation of the ordinance of the city. (2) That the employés of the defendant in charge of said cars were incompetent, were not keeping a proper lookout for persons upon or in close proximity to the track on which the cars were run; that they negligently and carelessly failed to see plaintiff in time to give any signal or alarm, and failed to give the usual and necessary signals of approaching danger, so as to warn plaintiff of the approach of said cars. (3) That said employés negligently failed to discover plaintiff in time to avert striking and injuring him, and so failed to avert striking him. (4) That defendant, whose duty it was to properly guard plaintiff from and warn him of all danger, and of approaching trains and cars, negligently failed so to do. (5) That defendant and its employés negligently and carelessly threw plaintiff off his guard from the danger he encountered. (6) That defendant carelessly operated cars and engines on separate tracks, and negligently constructed and maintained tracks too close together for safety to persons engaged in working upon either of said tracks, and in so operating them as to cause a person attempting to get and remain out of the way of cars on one track to get in danger of those operated on other tracks. In the second count it was alleged that the place where plaintiff was placed at work was one of more than ordinary danger and hazard to persons working on or about the tracks from the operation of railways, owing to the unusual nearness, together with the dangerous proximity of the tracks to each other, and to the amount and character of the switching done at that point, and owing to the hazardous practice of defendant in switching cars there, requiring extraordinary vigilance and care on part of workmen engaged upon the tracks in keeping a lookout to protect themselves from passing cars and engines; that the dangers and hazards were such as to require special instructions and caution from defendant to one unused to working in such places, to enable him to avoid being injured by cars operated upon said tracks; that plaintiff was unused to working at such places, and had never before worked there, and was unaware of such hazards and dangers, all of which was known to defendant; that defendant failed to give plaintiff any instructions as to such danger. The count then sets out with great particularity the claimed extraordinary dangers, and avers that said accident resulted to plaintiff because of the negligence of the defendant, and its failure to warn plaintiff while he was in the proper discharge of his duties and without fault on his part. The defendant denied all the allegations of the petition, averred that plaintiff was guilty of contributory negligence in not looking out for and avoiding passing cars, and says that plaintiff knew all of the dangers incident to his work, and made no objection to the manner in which defendant did its work in said yard.

2. Complaint is made that the court, in its statement of the issues to the jury, omitted to advise them as to that part of defendant's answer wherein it pleaded plaintiff's knowledge of the manner in which the work was done in the yard, and the fact that he made no objection thereto. It is true that in the statement of the issues no mention was made of this defense. In the seventh instruction, however, the jury was told that if “plaintiff, before the accident, knew that the cars were frequently switched in this yard at the rapid speed testified to, and if he made no objection to such manner of switching, then he is presumed to have assented thereto, and assumed the risk of injury from such rapid movement of the cars, and he cannot recover if his injuries were occasioned by such switching or movement of the cars; and if such you find the fact to be, then your verdict should be for the defendant.” There is, then, no just ground for complaint in this respect. Siltz v. Insurance Co., 71 Iowa, 710, 29 N. W. 605. That this instruction fairly presented the issue ought not now to be a subject of contention, inasmuch as it appears that the instruction was given at defendant's instance.

3. To the end that what may be said hereafter may be properly understood, it is necessary that we state the facts and circumstances surrounding this accident. It appears that just prior to being struck, plaintiff and one Scheeler were working on the track of defendant at a point where it is crossed by C avenue. They were putting in plank in the track. They had been working there about 20 or 25 minutes. The last thing plaintiff did was to drive a spike in a plank. While so doing, he heard an engine bell ringing. He looked up, and saw the engine coming, 80 or 90 feet away. It was coming from the north, and on the track upon which he was at work. When he had finished driving the spike the engine was within 10 or 15 feet of him. Plaintiff thus describes what followed: “I stepped off the track, to allow this engine to pass, and as I stepped off I saw a foot adz on the other side of the track. That was a tool for a man to work with, trimming off timbers. I saw a man there, attempting to get it off the track before the engine ran over it. He attracted my attention for four or five seconds, and I heard some one halloo, and I turned round, and about the same instant that I turned I was struck by cars coming from the south. I imagined I saw the car, which seemed to be about a foot from me. When I saw it, I tried to move, but could not. When I was struck by these cars, I was standing from 18 inches to 2 feet from this track, which is the main line track, and is the first track west of where I had been working on. I was struck by cars coming from the south, on the main line track. I was standing there, and the engine going south on the track I had been working on had not got by me yet. I was standing between the tracks, I would judge about 18 inches to 2 feet from the main line track. The distance between these tracks is 7 feet and 10 inches. The cars that struck me were coming from the south. I had been facing the east. That would be looking towards the track I had been working on. While working on this track, I had been facing north. When I stepped off of the track I had been working on, I was looking east. Before attempting to drive this spike, I looked down south along the track. I had a view of them all, and I could see the adjacent tracks. While working there, I was facing in the opposite direction from which these cars come. I had looked down these tracks a minute or a minute and a half before the accident. During that time I drove the spike, and got off the track, to let the engine pass that was coming from the north. I did not think there was more than five seconds passed from the time I got off of the track where I had been working before I was struck. As I looked at this foot adz on the track, I was in the act of looking south, but this man attracted my attention, who was attempting to take the foot adz off the rail, for five or six seconds. My attention was next attracted by some one crying out. I was startled by it. Just before I was struck by these cars coming from the south, I was looking toward the east. At the time some one cried out I looked toward the right, and as I did so the cars seemed to be about a foot from me. I was struck, and they throwed me right square around with my face to the north, knocking me down, and running over my left arm. The wheels ran over it in three or four places. The muscles of my arm were on the rail, and my hand was on the rail and the wheels went over the muscle, starting a little above the elbow and coming down over the forearm and over the hand, which of course crushed my arm. There was no engine attached to the cars that struck me. I would judge they were going at the speed of eight or nine miles an hour at the time they struck me.” The testimony also showed that the foreman was some two car lengths away when the accident happened, that he gave plaintiff no notice of approaching trains, and that plaintiff had never worked in a yard where the practice of kicking cars was followed, and that he had no knowledge of the practice in the Cedar Rapids yards. The fireman on the engine which came from the north testified that the cars which struck plaintiff were coming on the main line, and were not attached to any engine, that they were being...