Watson v. Wabash, St. Louis & Pacific R'y Co.
| Decision Date | 24 April 1885 |
| Citation | 23 N.W. 380,66 Iowa 164 |
| Parties | WATSON v. THE WABASH, ST. LOUIS & PACIFIC R'Y CO |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.
ACTION FOR A PERSONAL INJURY. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.
AFFIRMED.
D. H Soloman and B. B. Burnett, for appellant.
Mynster & Adams, for appellee.
I.
After the introduction of the evidence, the defendant asked the court to direct the jury to render a verdict in its favor. This the court refused to do, and the defendant assigns the ruling as error. The defendant insists that the evidence not only failed to show negligence on its part, but failed to show a want of contributory negligence on the part of the plaintiff.
The circumstances under which the injury was received were substantially as follows: The plaintiff was a teamster residing at Council Bluffs, and at the time of the injury was engaged in that city in hauling lumber for the Chicago Lumber Company, from the cars on the defendant's track to the company's lumber-yard. He had, just prior to the accident, been sent by his employer to a particular car loaded with lumber, with instructions to transfer the lumber to the company's yard. He had stationed his team near the car, the rear of his wagon being towards the car, and had mounted the car, and had loaded from the car, upon the wagon, a small portion of the lumber, when he undertook to dismount. While dismounting, his foot was caught and crushed between the bumper of the loaded car and the bumper of another car which had been standing, detached about eighteen inches from the loaded car. The loaded car is denominated car A, and the other, car B. The two cars were standing upon one of four side tracks where cars were accustomed to be placed for the purpose of being unloaded. Car B was propelled against car A by another car, called car C, which had been brought in by an engine, and had been thrown back, detached, against car B. The plaintiff did not hear the approach of car C, and was not in any way, by ringing of bell or otherwise, warned of its approach. He was warned of the approach of an engine, and, while he did not know that it was coming on his track, he apprehended that it or a car might be thrown against car B, and that that car might be thrown against car A. The engine was not in his view as he stood on car A, his view being obstructed by car B. But the warning he received caused him to proceed to dismount. In attempting to dismount he appears to have been actuated in part by a regard to his own safety, and in part by a regard to the safety of his horses and wagon. The ends of the pieces of lumber upon the wagon were almost in contact with the car from which he was taking the lumber. If the horses had stepped back, the lumber on the wagon would have been brought in contact with the car; and if the car had been thrown back, as it was in fact, it would have been liable to injure the wagon, if not the horses.
The plaintiff's purpose was to dismount and see whether a car or engine was coming in on his track, and, if it was, to start the horses forward. But, unfortunately, he did not have time. Car C came back too soon for him, and he was injured in the act of dismounting. The engine, of the approach of which he was warned by a by-stander, does not appear to have come very near him. Car C, it appears, came in rapidly, and with so little noise as not to be observed by him. He complains that the defendant was guilty of negligence in throwing car C back with so much force, and without giving warning of it. The defendant complains that the plaintiff was guilty of negligence in attempting to dismount at all, and also in his mode of dismounting. A link projected from the draw-head of car B, and the plaintiff, in attempting to dismount, placed his left foot on the link, holding onto car A, and intending to step down backward upon his right foot. But before he could reach the ground his left foot was caught, and he pulled himself up again and remained until his foot could be disengaged. He might have jumped off instead of attempting to step off, but he appears to have been deterred from so doing by the fact that the ground was covered with broken rock. He might, perhaps, have stepped directly from the bumper of car A, but it was not very long, and he yielded to the temptation to brace himself by making the link projecting from the other bumper a momentary footrest. He might have swung his left foot out beyond the link, and rested it upon the bumper of car B, but for the pin which held the link. He did not, it appears, apprehend an immediate collision, nor greatly apprehend any collision at all; and if two or three seconds more had been allowed him, he would doubtless have alighted in safety. If he is to be justified at all in stepping upon the link, it must be because he was to use it only as a momentary resting-place, and did not apprehend the immediate approach of anything. Possible he was guilty of contributory negligence, but we are not impressed that it was so clearly so that we should be justified in declaring it to be so as a matter of law. It is said, however, that if he had remained upon the car he would not have been injured, and that he was guilty of contributory negligence in not remaining there. But we cannot so hold. If the collision had been apparently imminent, it might have been a close question as to whether it would not have been negligence to attempt to dismount. But according to the undisputed evidence it was not apparently imminent, nor did the plaintiff know that a car or engine was approaching on his track. He apprehended that it might be so, and sought to place himself where he could see, and take care of his team if necessary.
One fact upon which the defendant places some stress remains to be stated. The plaintiff's son, a boy about eleven years old, was in the wagon assisting his father, and saw the car approach and gave no warning. It is insisted that he was guilty of negligence, and that his negligence is to be imputed to the plaintiff. But, in our opinion, this would be carrying the doctrine of imputed negligence much further than the law justifies. Besides, he did not, probably, know that his father was going to dismount until he saw him dismount, nor observe where he placed his left foot until it was too late, if he observed it at all. The collision occurred before the plaintiff's right foot reached the ground.
We come next to consider whether there was any evidence of negligence on the part of the defendant, and we have to say that we think that there was. Cars should not without warning be violently thrown back against detached cars that are in process of being unloaded. It is not, perhaps, entirely certain that any of the company's employes knew that car A was being unloaded. But it was placed where it was for the purpose of being unloaded. The company's employes knew, or should have known, that it was liable to be in process of being unloaded, and the slightest observation would have revealed the fact that it was being unloaded.
It is insisted, however, that, even if it were true that the defendant became liable, the plaintiff is not entitled to recover, because he has seen fit to predicate the defendant's liability upon certain facts and has not proved the existence of those facts. The plaintiff averred that he "was rightfully there," and "with the knowledge and consent of the defendants." It is insisted that the plaintiff has not proved either averment, and that it was necessary, to entitle him to recover, to prove both. But, in our opinion, it was sufficient if the plaintiff proved that he was rightfully there, and that the company was negligent, even though it may not have known that he was there, and may not have expressly consented to his being there. If the plaintiff was rightfully there, the company owed him the duty of such care as is necessary for the safety of all persons engaged as he was; and it was...
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