Yeager v. Chi., R. I. & P. Ry. Co.

• Decision Date: 18 December 1909
• Citation: 123 N.W. 974,148 Iowa 231
• Parties: YEAGER v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

148 Iowa 231

123 N.W. 974

YEAGER

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Dec. 18, 1909.

Appeal from District Court, Emmet County; D. F. Coyle, Judge.

Action for damages resulted in a judgment for the plaintiff. The defendant appeals. Reversed.Carroll Wright, J. L. Parrish, and Crim & Morse, for appellant.

J. G. Myerly and M. J. Groves, for appellee.

LADD, J.

The defendant's railroad extends in a northwesterly and southeasterly direction through Estherville, but is referred to by the witnesses as running east and west. South of the main track are several side tracks numbered from one up from the main track. North of the latter is an elevator track. The Minneapolis & St. Louis Railroad crosses the main track east of the switchyard and is connected with it by a transfer track. In the evening of February 6, 1907, the deceased, Joseph A. Yeager, was engaged in switching cars as fieldman, while one Brisbin was following the engine which was manned by an engineer and fireman. The yard master, with this crew, had moved some loaded cars from the transfer track to side track No. 1, and, after leaving them near the east end of the said side track, returned to the depot at the west end of the yard; the engine being backed. Here the yard master directed the crew to get a coal car from the elevator track and take it to the transfer track and then return to side track No. 3, where he would meet them. For this purpose the engine backed down the main track, and was switched to the elevator track, where the coal car was coupled in front. The engine then was backed on the main track, pulling the coal car, and then moved forward pushing the coal car through the switch, which had been left open, onto side track No. 1. The engine had no pilot, but was provided with a footboard at each end and also with grab irons. Both Brisbin and deceased appear to have ridden on these footboards during the progress of the engine. When moving forward on side track No. 1, Brisbin stood on the north end of the front footboard, and the deceased on the south end, and so continued as the engine moved to the east at a speed of from six to eight miles an hour. As it passed the switch, Brisbin directed the engineer to take the car to the transfer track, and, as some of the evidence tended to show, gave him a signal that he was to take it the entire distance and that the track was clear. The cars left on side track No. 1 were about one-half mile from the switch, and, as the engine approached, Brisbin signaled the engineer to slow up, but received no response, and within a few seconds the coal car collided with the first standing car and caused the death of Yeager.

1. Brisbin, and also the fireman, after showing his competency, was asked what was the duty of an engineer when moving his engine as to keeping a lookout ahead, and, over objection, answered that he was supposed to keep a lookout continually. Appellant assumes that this was an inquiry as to the duty of the engineer in the circumstances disclosed, and therefore called for a conclusion the jury alone could draw; but this is not so, save inferentially. The inquiry was of those qualified to speak as to what was the duty of an engineer in moving his engine, not this particular engineer, but any, and, though calling for a fact in the nature of a conclusion, the evidence was admissible. Quinlan v. Railway, 113 Iowa, 89, 84 N. W. 960. The object of such testimony is to fix a criterion by which to measure the acts of the engineer whose conduct is under investigation. The jury may infer therefrom that it was the particular engineer's duty to keep a lookout continuously; but this does not render the testimony obnoxious to the objection interposed.

2. Appellant contends that deceased was guilty of contributory negligence in that, as is said, instead of riding on the footboard of the engine, he should have been at the front end of the coal car keeping a lookout for obstructions on the track ahead. If, in the performance of his work, deceased owed this duty to defendant, the point would have to be conceded. As to that, however, the evidence was in conflict. The defendant rule provided that: “When cars are pushed by an engine (except when shifting and making up trains in yards) a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need.” Apparently the reason for the exception is that the engineer may have in mind the location of or be able to keep a lookout for obstructions on the track and enable the helpers to be where they can alight on the ground conveniently to throw switches or couple and uncouple cars and the like. Two witnesses called for plaintiff testified that deceased was in the proper and customary place; one of them explaining that it was only when two or more cars were being pushed that the fieldman was required to keep a lookout from the front car. Brisbin testified both ways, and several witnesses called by defendant were of opinion that deceased should have been on the coal car keeping a lookout. Manifestly the issue as to whether he should have been on the coal car or was where he should have been was for the jury. Possibly, owing to the height of the end boards on the coal car, he could not have seen ahead, without leaning out or getting off; but if at a place where, in the exercise of reasonable care, he might have been, he was not guilty of negligence. The evidence with reference to the customary place for the fieldman to ride when a car was being pushed was not introduced for the purpose of excusing negligence, but as tending to show that deceased, in the manner of performing his work, was in the exercise of ordinary care. Pierson v. Railway, 127 Iowa, 13, 102 N. W. 149. See Boyce v. Wilbur Lumber Co., 119 Wis. 642, 97 N. W. 563.

3. Eight grounds of negligence are alleged: (1) Defective condition of the engine because of which steam valves leaked, thereby obscuring the view of members of the crew in observing signals and obstructions; (2) the omission of Bradley in directing the transfer of the coal car to instruct the crew what route should be taken; (3) the failure of Brisbin to take the main track and to observe that the engine...