Yeager v. The Burlington, Cedar Rapids & Northern Railway Co.

• Decision Date: 17 December 1894
• Citation: 61 N.W. 215,93 Iowa 1
• Parties: W. F. YEAGER, by His Next Friend, J. S. YEAGER, Appellant, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY. [*]
• Court: Iowa Supreme Court

61 N.W. 215

93 Iowa 1

W. F. YEAGER, by His Next Friend, J. S. YEAGER, Appellant, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY. ^[*]

Supreme Court of Iowa, Des Moines

December 17, 1894

Appeal from Cedar Rapids Superior Court.--HON. JOHN T. STONEMAN Judge.

Action to recover for personal injuries sustained by plaintiff, a minor, while in the employ of the defendant. When plaintiff had offered all his evidence, the court, on motion of the defendant, instructed the jury to return a verdict for the defendant. Plaintiff's motion for a new trial was overruled, and judgment entered on the verdict. Plaintiff appeals.

Affirmed.

Rickel & Crocker and M. P. Smith for appellant.

S. K Tracy and J. C. Leonard for appellee.

OPINION

Given, J.

I.

The questions discussed involve a consideration of the facts as shown in the evidence, and which are substantially as follows: Prior to November 2, 1891, the plaintiff, then over nineteen years of age, applied to the defendant's train master for employment, and was promised a position when a vacancy occurred. Later, he was informed that there was a place for him, but that he must have his father's written consent that he be employed, which consent he obtained. On November 2, 1891, he was directed to report for duty to the conductor of a certain freight train that was to go north from Cedar Rapids about 10 or 11 o'clock that night. On reporting, he was directed to take the place of front brakeman, without any instructions having been given him. When the train commenced to move, plaintiff was on the ground, in advance of it, and it occurred to him that a brake on the front car--a box car--was set, and should be loosened and he attempted to mount the car by the side ladder on the front end, for that purpose. The night was damp and foggy, and at the time plaintiff attempted to mount the car it was enveloped in steam from the engine so that he could see but little, if any, by the light of the lantern he carried. The train was moving north and plaintiff attempted to mount the car on the east side, by catching the ladder and placing his left foot against the oil box, preparatory to putting his right into the stirrup at the foot of the ladder. His foot slipped off the oil box, and jerked his hold upon the ladder loose before he got the other foot in the stirrup; thus causing him to fall with one foot across the rail, which foot was run over, and injured so as to necessitate amputation. At the time plaintiff was employed it was known to defendant's train master who employed him that he had no practical experience in train service as brakeman or otherwise. Plaintiff was a young man of at least ordinary physical strength and intelligence, had been in school for some fourteen years, and had lived near to defendant's line all his life, his father being employed by defendant as a trackman during part of that time. For some time preceding his injury he had been in employments near to railroad yards and tracks, where he could and did observe, to some extent, the manner in which trainmen performed their duties. He says: "I had frequently seen brakemen climb on the cars with the ladder at the side, and put their foot on the oil box." The evidence as to the way in which to mount a moving box car is as follows: "The general custom in getting on freight cars depends on the side of the car you are on and as to the end of the car the ladder happens to be on. If the car is moving north, and the ladder is on the front end on the side that you are on, and you are on the right side, the first step would be on the oil box. Catch hold of the first and second rungs of the ladder, and from there into the stirrup, and then go hand over hand. These stirrups, on the average cars are about thirty inches above the ground." Another witness states it thus: "If the cars are moving any way fast, they move with them, in the same direction, and get hold, with the hand, of the ladder, and catch the oil box with their foot, catch the stirrup, and go on top. The oil box is used to keep you from swaying around against the car. It is to steady yourself. It is to protect yourself from being jerked against the car, and also gives you a chance to get your foot in the stirrup. The stirrups are too high to get your foot in, and the hand hold too. There is not much weight to go on the oil box. The weight is on your hands. The car has got you. It is more to steady you than anything else."

II. Following the order pursued in the arguments, our first inquiry is whether there is such evidence of either of the acts of negligence charged as that the court should have overruled defendant's motion for a verdict. In Meyer v. Houck,...