Wheelan v. Chicago, Milwaukee & St. Paul Railway Co.
| Decision Date | 16 May 1892 |
| Parties | FRANK WHEELAN, Trustee, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY CO., Appellant |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON. S. H. FAIRALL, Judge.
ACTION to recover damages for the death of William Doyle. Verdict and judgment for the plaintiff. The defendant appeals.
Reversed.
Mills & Keeler, for appellant.
M. P Smith and Ranck & Wade, for appellee.
This action is brought by the plaintiff, as the assignee in trust of the administrator of the estate of William Doyle deceased. It appears that the intestate, William Doyle, was on August 3, 1888, in the employ of the defendant as a section man or track repairer on its line of railway running from Marion to Ottumwa, and on that part of said line situated in Iowa county, in the vicinity of the stations of North English and Parnell. That on said day, and while engaged in his said occupation, at the place above named, a freight train of the defendant came by, going northeastward at a rapid rate of speed, and among the cars composing said train was what is known as a "stone dump," the doors of which were hung on hinges at the top. Said car doors were from twelve to fifteen feet long and three feet wide, and, when properly secured at the bottom, said doors sloped inwardly from the top. That these doors, except when opened to allow the stone and dirt to fall out, were arranged to fasten at the bottom by an iron strap, leaving an opening which passed over a staple, and was to be secured by a straight iron pin, which passed through the loop of the staple. It is claimed that the strap should have been secured by a hook passed through the loop of the staple, which would be held in place by its own weight, and the weight of a chain attaching it to the car, and that the defendant in using the pin fastening was careless and negligent; that the pin, when thus placed through the staple horizontally, was easily shaken from its place, thus leaving the door free at the bottom to swing back and forth from the side of the car, which it did for several feet when the train was in motion; that while left in such unsafe condition, and as the train was passing by where said Doyle and others had been at work, the door on the east side of said stone dump car suddenly swung outward towards where deceased was standing, and struck an iron bar, which he was leaning upon, with such force as to drive it against his neck and breast, killing him instantly. It is averred that the deceased was not guilty of any negligence which contributed to produce his death, and that his death was caused by the carelessness and negligence of the defendant as above stated. The deceased was nearly twenty-one years old, healthy, and of good character and habits. The defendant files a general denial, and specifically denies the negligence charged.
When the train passed which is alleged to have killed Doyle he was standing on the east side of the track, which was inside the curve. He was leaning forward on a crowbar, the bottom of which rested upon somewhat higher ground than did his feet, and was nearer the track. He held the top of the bar in both hands, and about opposite his left breast. He was standing on the sloping top or edge of the embankment, and facing towards the track. There is some conflict in the evidence as to how far from the rail the deceased was standing when the accident occurred, but the plaintiff's witnesses put it at five feet. The dump on which he was standing was seven feet high, and the bar he was leaning upon was nearly five feet long, and weighed twenty pounds. The train was running from twenty-five to thirty miles an hour when it passed the deceased. When the train was seen approaching, the section foreman told his men to get out of the way, and the deceased, the foreman, and three others stepped to the east side of the track to let it pass, and one man, James Doyle, stepped to the west side of the track. The men on the east side of the track stood in the following order: Furthest north, Cronin, the foreman; one hundred feet south of him, the deceased; five or six feet south of deceased, Costello; about thirty feet south of Costello stood McDonnell; and Flannigan was five or six feet south of him, the nearest to the approaching train. When the foreman gave the warning the train was six hundred feet distant. As the train approached, Flannigan was looking south, and did not see the accident. McDonnell was facing north, and saw the deceased prior to and when he was killed. Cronin saw the deceased fall. So did Nichols, a brakeman on the train. No one saw anything hit him or the bar which he held. The witnesses who saw the accident say that, when all but a a few cars had passed the deceased, they noticed him going up and being carried along in the air, and when he fell he was several feet north of the point where he had been standing. The crowbar seemed to have been forced up against his neck and jaw, and through between his jaw bones. His right arm was broken, the bar was lying at his side when he was picked up after the train passed.
I. We have stated the facts quite fully, owing to the peculiarity of the accident, and the fact that nothing was seen to strike the deceased, or the bar which he held. The plaintiff insists that the defendant's negligence caused the injury, and that the door heretofore referred to swung out and struck the bar which the deceased held, and thus killed him. The evidence shows without conflict that the train consisted of some twenty or more cars,--a caboose in the rear, then five box cars immediately ahead of the caboose, and then four stone dumps ahead of the box cars; the first stone dump next to the box car was number 18,499; that the doors of the stone dump cars were not down, loose, or swinging when the train reached Parnell, the first station north of the point of the accident; that the door on this car, 18,499, was fastened at North English, the first station south of the point of the accident; that the train made no stops between North English and the place of the accident, two and one-half miles; that the door of 18,499 was fastened with an iron pin attached to a chain; that this same door was down at Sigourney, at Williamsburg, and at North English, and in each case it was fastened up.
Upon these facts the plaintiff bases his claim that the defendant's negligence caused the death of Doyle. The claim rests only on the presumption that, while it is shown this door was put up and fastened at North English, two and one-half miles south of the point where the accident occurred, it must have got loose, swung out and hit the deceased, notwithstanding it is shown without conflict that the same door was up and closed at Parnell, the next station north of the place where the accident occurred. It may be conceded, at least for the purposes of this case, that the defendant was negligent in running a car with a door so defectively fastened as to come loose and fall down as this door is shown to have done. But that is not sufficient to fix a liability on the defendant. It must appear that its negligence caused the accident complained of, and that the deceased did not contribute to produce the result. It is an elementary principle of law that a condition or state of things once established by direct proof is presumed to continue as before until the contrary is shown, or a different or stronger presumption raised. 1 Greenleaf Evidence [12 Ed.] section 41. We may then presume that the door, having been fastened at North English, remained so, unless there is evidence sufficient to overcome such presumption. Against this presumption, and the fact that the door was found up in its place at the next station north of the place of the accident, the plaintiff asks us to presume that in the meantime, and just at the instant of the accident, the door became loose, swung outward, hit the bar which deceased held in his hand, and killed him. Are we justified in so presuming from the evidence? If the evidence did not disclose the fact that the door in question had been loose and swinging several times prior to the accident, and once after it, on the same trip, counsel would not think of urging that the hasp thereof was the cause of the accident; but such fact is the basis of the presumption on which the defendant's liability is predicated. If it was not shown that the door was fastened at the nearest station south of the point of the accident, and that it was up in its place at the next station north of it, the jury might well have presumed, in view of the other evidence, that it caused Doyle's death. It does not appear from the evidence as to whether or not the train stopped immediately after the accident. If it did, surely some of those present would have noticed the fact, if the door was loose and swinging. As no such evidence appears, we may presume that the train did not stop, or, if it did, that no one saw the door loose or down. The iron which the plaintiff claims struck the bar is shown to have been about two inches wide and nearly an inch thick. The evidence shows that the train was running from twenty-five to thirty miles an hour, and yet the bar which deceased held, and which was produced before this court during the oral argument in this case, shows no dent or other indications of having been struck by anything. It is inconceivable how such an iron, two inches wide and an inch thick, which was attached to a train running...
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