Trott v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 16 May 1901
• Citation: 86 N.W. 33,115 Iowa 80
• Parties: CHARLES S. TROTT v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

86 N.W. 33

115 Iowa 80

CHARLES S. TROTT v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 16, 1901

Appeal from Muscatine District Court.--HON. 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 servants in not properly inspecting said car 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 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 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. Verdict and judgment were rendered in favor of the plaintiff for $ 20,000. The defendant appeals. --Reversed.

REVERSED.

Carskaddan & Burk, Carroll Wright, and Robt. Mather for appellant.

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

OPINION

GIVEN, C. J.

I. 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.

II. 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.

III. 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 from the condition of the guard rail; and the jury was told as follows: "Was the defendant guilty of negligence in leaving the said space open and unblocked, and of such width that the foot of an employe might be caught and held in it long enough to sustain injury from a train in motion? This is a question which you are to answer from the evidence before you." Plaintiff's counsel insist that this left the allegation that defendant was negligent in respect to the coupling to be considered. Surely it did, as an incident in the case, but not as the proximate cause of the injuries. We cannot say, as a matter of law, that under the evidence plaintiff was guilty of contributory negligence, or that he assumed the risk incident to the condition of the guard rail. These were questions for the jury, and, under the evidence relating to them, we should not interfere with their verdict on this ground.

IV. The defendant offered to show that there were a large number of unblocked guard rails in its yards, at other points than Muscatine, along that part of the defendant's road over which the plaintiff had worked. To this evidence the plaintiff's objection was sustained. Defendant insists that it was admissible as bearing upon the questions of assumption of risk and contributory negligence, and cites Keist v. Railway Co., 110 Iowa 32. In that case the plaintiff's intestate was injured by being brought in contact with a certain cattle chute, and it was held that evidence as to the construction of such chutes on the part of the defendant's road over which the deceased had been employed was competent to be considered, as tending to show knowledge on the part of the deceased as to the proximity of such chutes. A noticeable distinction between the cases is that cattle chutes were perfectly open and obvious to brakemen in passing on their trains, while it...