174 Iowa 592 | Iowa | 1916
The negligence charged was substantially that the trolley wire, which was suspended above the track, and through which was transmitted the electricity which furnished the power to move the train, was too low, so that one riding on the car might come in contact with it and be pushed off, or receive a shock which would throw him from the car.
Appellant’s proposition, and the cases cited to support it, is this: A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such a nature and are so related to each other that it is the only conclusion that can fairly or reasonably be drawn from them. It is not sufficient that they be consistent merely with that theory, for that may be true, and yet they may have no tendency to prove the theory. Asbach v. Chicago, B. & Q. R. Co., 74 Iowa 248; Daugherty v. Chi
Appellee contends that the theory of the defendant in this case is not supported by evidence equally probative with that supporting the theory of plaintiff, and that, from the facts shown in the record, the only reasonable conclusion that could be reached was that the low suspended wire negligently maintained by defendant was the proximate cause of the injury to plaintiff’s decedent, and that plaintiff is not required to negative every other possible cause or every conceivable theory that ingenuity might invent, and cites Gordon v. Chicago, R. I. & P. R. Co., 146 Iowa 588, 594; Lunde v. Cudahy Packing Co., 139 Iowa 688, 702; Bonjour v. Iowa Telephone Co., (Dec. 18, 1915. Rehearing denied May 2, 1916). They also cite Brownfield v. Chicago, R. I. & P. R. Co., 107 Iowa 254, 258, the Bonjour case, supra, and Lehman v. Minneapolis & St. L. R. Co., 153 Iowa 118, 124, to the proposition that, when a cause is shown which might produce an accident in a certain way, and the accident happens in that manner, it is a warrantable presumption, in the absence of showing of other causes, that the one known was the operative agency in bringing about the result. But the point here is whether plaintiff has shown that the accident did happen in the manner she claims. In the Lehman case, supra, in commenting upon the cases cited in support of the doctrine contended for by appellant, the court said:
“Counsel rely upon a number of cases in which this court has held that the burden is upon the plaintiff, in an action to recover for injuries due to the alleged negligence of the defendant, to show a causal connection between such alleged negligence and the injury, and that it is not sufficient to show that the negligence might have caused the injury, if the cir*596 cumstances indicate an equal probability that it was due to some other cause.”
The question presented, then, in this case is as to whether or not the theory advocated by appellant is equally probable with that contended for by appellee.
It is necessary to refer to some of the more important facts. There is no dispute as to some of the facts. As to others, there is a conflict. The accident in which plaintiff’s decedent was injured and killed occurred on the night of January 20, 1913, at a siding known as Tucker Station, between Des Moines and Colfax. The accident occurred on a dark, rainy night, while the train crew were attempting to drop a certain Union Pacific furniture car onto the siding at Tucker Station. The Union Pacific car, in connection with which the accident occurred, was the second car from an electric locomotive. There was a ladder at the side, and also at the end of the car, and a platform about 3 feet long and 6 inches wide extended from the east end of the ear at a point about 18 inches below the top of the car, from which the brake staff extended. The brake stand was on the east end of the car, about half way between the center of the car and the south edge. To reach this brake stand, it is necessary for the brakeman to go up to the top of the car. The brake staff extends about 18 inches above the top of the car. Deceased was 5 feet, 6 inches tall. The Union Pacific car was higher than the ordinary freight car. At a point about 150 feet east of the west switch, the trolley wire, suspended above the track on the siding, was so low that the same would and did come in contact with the brake staff of the Union Pacific furniture car on which deceased was riding. The wire was not in the middle of the track, but sagged towards the south rail. This sagging condition, together with the location of the poles to which the wire was attached, and the curve in the track, caused it to extend almost across the track from the point of attachment,, near the north rail, from northeast to southwest, in such a manner that an object of sufficient eleva
There was evidence from which the jury could have found that, on the night of the accident, the train approached the siding at Tucker from the west, and stopped with the locomotive west of the west switch, for the purpose of dropping the Union Pacific car through the west switch into the siding, which was on the north side of the main line. The train was cut at the west end of the furniture car, and the go-ahead signal was given by deceased. As the furniture car approached the switch, the deceased, who was then on the side of the car, about half way up, uncoupled the furniture car from the car
Appellant further argues that, after the deceased gave the go-ahead signal from the side of the car, he could have stepped around on the end ladder and set his lantern on the platform, which would be just above his head, and then, either with his foot or his hand, have pushed down the uncoupling lever; that, if he had used his hand to do this, it would have been almost necessary for him to have first disposed of the lantern, as he would have had to hang onto the car with one hand and manipulate the lever with the other. Or that he may have uncoupled the car, started to climb up the side or end, and when his head reached the platform at the end of the car, he may have set his lantern upon the platform before he continued to climb up and stand upon the platform or to manipulate the brake; that it was necessary for him to set the lantern somewhere while he was manipulating the brake; and that the ordinary thing for him to do would be to set the
Bnt we think this theory is not as probable as that advanced by appellee, because the evidence shows that deceased started out to perform the duties of a rear brakeman in dropping the ear into the siding; that he uncoupled the Union Pacific ear from the rear portion of the train; that he got upon the ladder at the side of the car at the east end; that he gave the go-ahead signal; that he uncoupled the car from the front or east portion of the train, which uncoupling could be performed from the side ladder; that it was his duty to go up on top of the ear to set the brake; that, if he performed his duty and did go on top of the car, he would come in contract with the wire at a point approximately above the point where his body was subsequently found between the rails, and this was more than 150 feet from where the last uncoupling took place to the point where the body was found, the last uncoupling having been completed at some point west of the west switch, thus affording ample time for Avise to have reached the top of the car and set his lantern down,, preparatory to setting the brake; that his lantern rode on the ear from where his body was found to the carload of sand, a distance of some 300 feet from where the accident occurred; that the lantern could only ride that distance on the top of the car, or on the brake stand, and to reach this brake stand, it was necessary to go to the top of the car.
After a careful consideration of the record, our conclusion is that the evidence is sufficient to support the finding of the jury. The judgment of the district court is, therefore — ■ Affirmed.