93 Iowa 236 | Iowa | 1895
Plaintiff’s intestate was a minor, some nineteen years of age, in the employ of defendant company as a brakeman on freight trains. At Ottumwa, Iowa, January 4, 1890, while attempting to
The District Court admitted testimony in support of this theory of the defense, and also' gave the instructions for the application of the facts it found. Of the evidence admitted and the instructions the plaintiff complains. The instruction directly assailed is the twentieth of the series given by the court. We think, to a fair understanding of the law on this particular branch of the case, as expressed by the court, the instruction preceding and the one following the one assailed should be given, and we quote the three, as follows: “(19) It was the duty of the defendant to exercise reasonable care to so construct its switch, at the point where the plaintiff’s intestate- is- alleged to have been injured, as to avoid all unnecessary danger to its employes; and if you find from the evidence that it neglected to do so, and the deceased, E. J. Clark, was injured in consequence of such neglect, without negligence
The case of Hamilton v. Railroad Co., 36 Iowa, 38, is cited as opposed to the"* rule adopted by the court. That case aids our consideration materially. The negligence there charged was in loading timber on an open car. It was so loaded that the ends of the timber projected beyond the ends of the car, and a safer plan, in view of all the interests to be'considered, was apparent. These timbers could have been placed on the car in a manner to have avoided additional danger, because of them, in coupling the cars. However general might have been a custom of so loading cars, both the danger and the better plan of loading would have been apparent; and hence the act was “of itself negligent.” A rule of the usual custom as to loading timbers, was