Woodworth v. Iowa Cent. Ry. Co.

• Decision Date: 25 November 1914
• Docket Number: 29422
• Citation: 149 N.W. 522,170 Iowa 697
• Parties: EARL H. WOODWORTH, Appellee, v. IOWA CENTRAL RAILWAY COMPANY et al., Appellants
• Court: Iowa Supreme Court

149 N.W. 522

170 Iowa 697

EARL H. WOODWORTH, Appellee, v. IOWA CENTRAL RAILWAY COMPANY et al., Appellants

No. 29422

Supreme Court of Iowa, Des Moines

November 25, 1914

REHEARING DENIED TUESDAY, JUNE 22, 1915.

Appeal from Hardin District Court.--HON. C. E. ALBROOK, Judge.

ACTION for damages for personal injuries to plaintiff resulting in the loss of both legs. At the time of the accident, the plaintiff was an employee of the defendant, engaged in the performance of his duties as switchman. There was a verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

C. H E. Boardman, F. M. Miner and W. H. Bremner, for appellants.

Kelleher & O'Connor, Williams & Huff, Halloran & Starkey, for appellee.

EVANS J. LADD, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

EVANS, J.

The accident in question occurred on April 11, 1910, in the railroad yards of the defendant at Oskaloosa. The defendant's switching crew consisted of two helpers and a foreman, besides the engineer and fireman. The plaintiff was one of the helpers, and was engaged in the line of his duty at the time of the accident. He was riding on the front footboard of the switching engine and was thrown off, as alleged, by the lurching of the engine, and was thrown in such a way that the wheels of the engine passed over his legs. The charge of negligence against the operating railway company is based upon the specifications that the track at the place of the injury was dangerous by reason of "low joints" in the rails, and that the speed of the engine was excessive in view of such condition of the track. The defendants denied all negligence and pleaded contributory negligence and assumption of risk.

There are two defendants, the Iowa Central Railway Company and the Minneapolis & Saint Louis Railroad Company. The first named was the operating railway company at the time of the accident, whose employee the plaintiff was. Before the suit was brought, the other defendant became the purchaser from the Iowa Central Railway Company of its railway and all its assets. As a part of the consideration therefor, it assumed all liabilities of the selling company. It is on this ground that the plaintiff claims to recover from both defendants on his alleged cause of action against the selling company.

The immediate circumstances of the accident were detailed by the plaintiff as a witness, as follows:

"I then got on the front end of the engine standing on the footboard, on the left-hand side--the east side. Mr. Andrews was on the right-hand side, and Mr. Frey was on the right-hand side, next to the drawbar. We were all on the footboard, on the head end of the engine that morning. I was on the left-hand side and the other two men were on the right-hand side. The footboard is about the width of the rails--a little wider--four or five feet. It does not extend out as far as the pilot beam, and it was about ten inches short, I think. That morning we came up to High Avenue, a distance of about three blocks, and stopped. The foreman told us to go in on the house track. We stopped at High Avenue to pick up the foreman. Mr. Andrews got on the engine at First Avenue. The engine started south, and had run about 225 to 300 feet when the accident happened. The grade is very nearly level. If there is any grade at all, it is down grade. The engine was running approximately 8 miles an hour. The engine is generally pretty quick to pick up. Mr. Quackenbush was the engineer and Landfear was the fireman. The engineer is on the right-hand side when the engine is headed south. The fireman is on the left-hand side. I was on the fireman's side. It was about 6:05 to 6:15 when the engine started. Mr. Andrews started to get off. It was my duty to follow the engine foreman, Mr. Andrews. When Andrews started to get off, I started to get off, too. I did not think the engine was quite as far down as it was with reference to soft spots or low joints. We hit a low place in the track. The engine seemed to lurch forward and down, and my starting to get off it jerked me loose from the grabiron or handhold. Immediately before, my left hand was on the grabiron. That is the ordinary position in getting off. Just before that time, one hand was on the pin lifter and the other was on the grabiron. That is not the ordinary position in riding on an engine. I was listening to a conversation between Mr. Andrews and Mr. Frey. Andrews stepped off on the right-hand side. I started to get off on the left-hand side. I was accustomed to getting on and off an engine moving at that rate of speed. There was not anything in the rate of speed at which the engine was moving that was likely to throw me, and that was an ordinary place to step on or off the engine, moving at that rate of speed. When I started to step off, the engine seemed to dip down on my side, on the left-hand side. The point where the engine seemed to dip down was at this soft spot--the soft spot where I got injured. That was between 225 and 300 feet south of the First Avenue crossing. That is the same soft spot as I described as being in the vicinity of where water had stood. The rail was ordinarily depressed at that point about 2 1/2 to 3 1/2 inches. The engine seemed to go down. It threw me loose. I was thrown forward, out of the rail. My body was on the outside of the rail. My legs were across the rail. I was in a position at right angles to the rail, my feet a little bit towards the engine. The pony trucks are about 16 or 18 inches from the front of the footboard. When I found myself falling, I tried to throw myself out of the way. The next thing was, it sort of all became blank; when I seen the engine was going to get me, I don't remember anything until the boys picked me up."

Other facts and the evidence relating thereto will be set forth later in the discussion of the alleged errors complained of by appellant.

1. The first contention of the appellants is that the Minneapolis Company is in no manner subject to the plaintiff's suit, because of an express provision in its contract of purchase. The third and eight clauses of the deed or contract whereby the one company purchased from the other were as follows:

"Third. The grantee hereby assumes the payment of all the current and ordinary charges, costs, liabilities and expenses of the grantor arising out of the operation of the railroad and property of the grantor and remaining unpaid at the date of the execution and delivery of this indenture and agrees to indemnify and save harmless the grantor from and against any and all such charges, costs, liabilities and expenses.

"Eighth. Nothing in this indenture expressed or implied is intended or shall be construed to confer upon or give to any person or corporation other than the parties hereto their successors and assigns any right remedy or claim under or by reason of this indenture or under or by reason of any covenant condition or stipulation herein contained, all the covenants, conditions and stipulations contained in this indenture being for the sole and exclusive benefit of the parties hereto, their successors and assigns."

The third clause is that upon which the plaintiff relies in asserting his claim against the Minneapolis Company. The eighth clause, above quoted, is that upon which the Minneapolis Company bases its denial of liability to the plaintiff. It is quite clear that the third clause, in the absence of the eighth, is sufficient to render the purchasing company liable to plaintiff for whatever amount was justly due him from the selling company. The defendant does not contend otherwise. Its contention is that the eighth clause completely negatives such liability to the plaintiff and confines the liability of the Minneapolis Company to the Iowa Central Company alone. That the terms of the eighth clause will bear such construction must be conceded. If such construction be given to it, its practical effect is to contradict and nullify completely the third clause. The Iowa Central Company turned over to the Minneapolis Company all its assets of every kind. It has nothing left but its name and its legal entity.

Ignoring the eighth clause, the contract, on its face, was just and free from fraud as to creditors of the selling company. If such eighth clause is to be construed as depriving such creditors of all right to avail themselves of the other provisions of the contract, then it was manifestly fraudulent on its face as to such creditors. In view of the conflicting provisions of these two clauses, one must necessarily give way to the other. The assumption of the liabilities of the selling company by the purchasing company was of the very essence of the consideration. The undertaking was presumably equivalent to the benefit received. To enforce clause eight as construed by the appellants would be to defeat and to defraud every creditor of the selling company by rendering him dependent upon the mere grace of his debtor.

The precise question here presented was involved in Hipwell v. National Surety Company, 130 Iowa 656, 105 N.W. 318. It was there held that a condition similar to clause eight herein could not be enforced, because the same was in conflict with the covenants of the contract. That case is quite decisive of the point here presented. The cited case quite answers, also, the argument of appellant herein that the contract before us was one of mere indemnity for the selling company, and not of payment to its creditors. The contract in the Hipwell case was one of indemnity by an indemnity insurance company. The only consideration received by the insurance company was a comparatively small premium. The Minneapolis Railroad Company, appellant herein is not an indemnity insurance company. Its undertaking was not entered into for a premium....