Williams v. Iowa Cent. R. Co.

• Court: Iowa Supreme Court
• Writing for the Court: WEAVER, J.
• Citation: Williams v. Iowa Cent. R. Co., 121 Iowa 270, 96 N.W. 774 (Iowa 1903)
• Decision Date: 14 October 1903
• Parties: FRANK WILLIAMS, Appellant, v. THE IOWA CENTRAL RAILWAY COMPANY, Appellee

96 N.W. 774

121 Iowa 270

FRANK WILLIAMS, Appellant, v. THE IOWA CENTRAL RAILWAY COMPANY, Appellee

Supreme Court of Iowa, Des Moines

October 14, 1903

Appeal from Mahasha District Court.--HON. W. G. CLEMENTS, Judge.

ACTION at law to recover damages for personal injuries sustained by plaintiff while in defendant's service. Verdict and judgment for defendant, and plaintiff appeals.

Reversed.

Carver & Wooster and Rickel, Crocker & Tourtellot for appellant.

George W. Seevers and J. O. Malcolm for appellee.

OPINION

WEAVER, J.

Plaintiff claims that in the year 1899 he was in the employ of the defendant corporation, assisting in the operation of a construction or repair train, and that in pursuance of such service he undertook, with others, to distribute steel rails along the defendant's track. The unloading was accomplished by the use of two cables, one end of which was clamped to the track and the other hooked to a rail on the car, after which the train was moved forward, pulling the rail from the load. At the time in question the iron was being unloaded from a stock car, and two men riding in the car were charged with the duty of placing the rails in proper position to be hooked and drawn through the door or opening. Other men attended to the clamps at the rear end of the cables, while plaintiff and another unloosed the hooks from the unloaded rails, and carried them forward to repeat the process. Plaintiff alleges that while he was thus engaged the men in the car failed to use reasonable care in placing and preparing one of the rails for unloading, and that by reason of such negligence the rail, when hooked caught in the end of the car, causing the hook to slip from its fastening and fly back with great violence, striking and injuring him, without fault on his part. The defendant admits its corporate capacity, denies plaintiff's claim, and alleges that by his own negligence he caused or contributed to the injury of which he complains. Upon the trial there was no dispute that plaintiff was employed substantially as above stated, or that he was injured by the recoil of the hook as alleged. There was a dispute, however, as to whose duty it was to attach the hook, and who in fact attached it at the time of the accident, and also as to the matter of signals for moving the car--whether any were given, and, if so, by whom given.

It is not seriously contended that the evidence failed to present a fair question for the jury, and the only errors discussed in argument are assigned upon the instructions given by the court. Among the instructions objected to we note the following:

"Par 2. Under the issues thus joined, before the plaintiff can recover, he must establish all the material allegations of his petition by a preponderance of the evidence, according to the rules set forth in these instructions."

"Par 5. Before the plaintiff can recover, he must establish by a preponderance of the evidence the following propositions First. That plaintiff was in the employ of the defendant, and that such employment was connected with the use and operation of the defendant's railway at the time of the accident. * * * Fifth. That the plaintiff, in the performance of his duties at the time of the accident, exercised ordinary care and prudence, and did not in any manner contribute to his own injury. If each of the foregoing propositions are established by a preponderance of the evidence, then your verdict should be for plaintiff, and, if the plaintiff has failed to satisfy you by a preponderance of the evidence as to any one of these five propositions, then your verdict should be for the defendant."

"Par 11. If you do not find that it was the duty of plaintiff to give the signal to the conductor to start the train, and you find that the plaintiff did not give such signal to the conductor to start the train at the time of the accident, and you find that the plaintiff handed the hook to the employes in the car, and by them hooked in the rail, or you find that plaintiff himself placed the hook in the rail, and you further find that it was the duty of the men in the car to place the rail in a position in the car so that it would pass out of the car unobstructed, and such men in the car failed and neglected to exercise ordinary care and caution in placing such rail, and they were negligent in so doing, and you further find that such employes in the car gave the signal to the conductor to start the train, and such conductor acted on such signal, and gave the signal to engineer to start the train and the train was thereby started, yet it was the duty of the plaintiff to exercise ordinary care and caution; and if the plaintiff, by the exercise of ordinary care, could have observed and ascertained that the rail would not pass out of the car in time to have gotten out of the way of danger, or in time to have notified the conductor that the rail would not pass out of the car, and thus have avoided the accident, and the plaintiff failed and neglected to do so, then the plaintiff would be guilty of negligence directly contributing to his own injury. But if you should find from the evidence that such a state of facts existed as stated above in this instruction, and you further find that such person in the car, giving such signal, if any, or other employes in the car, knew that the plaintiff was negligent, and knew that he had not exercised such ordinary care and caution, and knew that the circumstances were such as to indicate a strong probability that the plaintiff or some other person would get hurt, it would be the duty of such person or persons in the car having such knowledge, if any, to do whatever he or they could, with ordinary promptness, to avert the accident, after he or they saw that the plaintiff or other person was in danger of getting hurt; and in such event, if he or they failed to use such reasonable means with reasonable promptness to avert the accident, this would be negligence on their part, which would make the defendant liable, even though the plaintiff may have been first negligent as stated in this instruction. But if the circumstances were not such as to suggest immediate danger to any person, or if it was reasonably apparent to such employe or employes that nothing could be done in time to avert the accident, after they discovered such negligence of the plaintiff ...