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

• Decision Date: 16 May 1901
• Citation: 115 Iowa 80,86 N.W. 33
• Court: Iowa Supreme Court
• Parties: TROTT v. CHICAGO, R. I. & P. RY. CO.

115 Iowa 80

86 N.W. 33

TROTT

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

Supreme Court of Iowa.

May 16, 1901.

Appeal from district court, Muscatine county; W. F. Brannan, Judge.

Action to recover damages for personal injuries sustained by the plaintiff, while in the employment of the defendant as a switchman in its yards at Muscatine, by reason of certain alleged acts of negligence on the part of the defendant, and without fault or negligence on the part of the plaintiff. The plaintiff charges “that said injury was caused by and through the negligence, carelessness, and default of the defendant and its servant in not properly inspecting said cars with which he had to work; in receiving them upon its tracks and in its train in their defective, dilapidated, unsafe, and dangerous condition; in placing them in the train and using them in their condition, when in bad repair and unfit for use; in not furnishing cars and machinery in ordinarily safe condition, and not instructing him, warning, or giving notice of their condition, and using the ordinary and reasonable care and caution for his safety in that regard, in their employ. * * * Plaintiff further alleges that his injuries aforesaid were caused by and through the carelessness, negligence, and default of this defendant and its servants in failing to fill the space between the guard rail and main rail, and in suffering it to be used in such unsafe, defective, and dangerous condition in the said yard, of which it had notice, and he was thereby thrown down, and his left leg run over by the cars and crushed and mangled, and he was otherwise greatly bruised, hurt, and wounded, as above stated.” The defendant answered, admitting that plaintiff was employed as alleged, and that he was injured in attempting to uncouple cars in one of defendant's trains, in consequence of which his left foot was amputated, and denies every other allegation in the petition. Further answering, the defendant alleges that plaintiff knew the condition of the coupling of said cars, and of the said track, rails, and guard rail, when he attempted to uncouple said cars, and assumed the risk of injury therefrom, if any there was, as one of the risks incident to his employment. Defendant further alleges that the plaintiff was guilty of negligence contributing to his injury by going between said cars and attempting to uncouple them while in motion. The verdict and judgment were rendered in favor of the plaintiff for $20,000. The defendant appeals. Reversed.Carskaddan & Burk, Carroll Wright, and Robt. Mather, for appellant.

M. A. McCoid and Horan & Devitt, for appellee.

GIVEN, C. J.

1. Plaintiff filed a denial of defendant's abstract, an additional abstract, and a motion to dismiss the appeal and affirm upon the ground that a “full, complete, and correct abstract,” as required, was not filed, and because the abstract filed was not filed within the time required. Defendant moves to strike said additional abstract and motion because not filed in time. We will not extend this opinion by a discussion of these motions, further than to say that the defendant's abstract is so far full and complete as that we should not dismiss or affirm upon the ground that it is not as required. As to the times of filing, neither party is within the rules; but, as this was the subject of stipulation between them, they have no just cause for complaint on this ground. Both motions are overruled.

2. A brief statement of the facts will render clear the questions discussed: Plaintiff was in the employ of defendant, at the time he was injured, as a switchman or car catcher in its yards at Muscatine. On the evening of October 16, 1897, he, in the line of his duty, attempted to uncouple two cars of the Burlington, Cedar Rapids & Northern Railway Company, that had just been received in defendant's yards. Those cars were provided with an appliance by which, by means of a lever, they could, when in order, be uncoupled without going between the cars. Plaintiff tried to uncouple with the lever, but, by reason of the coupling being out of order, he could not thus draw the pin. Plaintiff, seeing this defect, and knowing that because thereof he could not draw the pin by use of the lever, stepped between the moving cars, and attempted to draw the pin with his hand. While walking along between the moving cars in this attempt, his left foot caught between the rail and an unblocked guard rail, and held him so that he was thrown down by the car, between the rails, and seriously injured. Plaintiff had been in the employment of the defendant in its roundhouse at Eldon as a helper from in 1892 to October, 1896, and as a brakeman between Eldon and Rock Island from August 7 to October 14, 1897, at which time he was assigned to duty as a switchman in the yards at Muscatine. He worked as switchman the nights of the 14th and 15th, and up till 6:50 p. m. of the 16th, when he was injured. Amputation of his left leg was rendered necessary by reason of the injuries, and he suffered other injuries, the details of which need not be stated.

3. Defendant's first contention is that there is no evidence warranting a verdict for the plaintiff, for the reason that the evidence shows contributory negligence, and assumption of the risk incident to the unblocked guard rail. The court instructed that the defective condition of the lever was not of itself the immediate cause of the injuries, but that they directly resulted...