90 Iowa 252 | Iowa | 1894
I. The defendant was engaged in operating a coal mine, and the deceased was employed by the defendant to perform certain duties in the mine, and while so employed was struck and run upon by a loaded car, and killed. The following statement as to the arrangement of the mine, the duties of deceased, and the manner in which the accident occurred, will be sufficient for a correct understanding of the case: The mine was reached by a shaft in which two cages or elevators were operated, which we designate as the east and the west cage. From the bottom of the shaft the main entry extended, south, with cross entries and rooms on each side,.from which coal was brought in cars to be taken to the shaft and elevated to the surface. A track of iron rails for the passage of cars extended from the bottom of the shaft, south, along the main entry. Cars were operated on this track by means of an endless cable carried on rollers above and below the cars, propelled by a steam engine at the top of the shaft. Trains coming to the shaft took up loaded cars at points along the main entry to where they were drawn by mules from the different rooms. The cars were usually coupled together, and, when
II. The negligence charged is, in substance, as follows: First. Defendant failed to provide a safe and convenient switch, and proper appliances for adjusting the same; the switch being a spring switch, which is not a safe switch, nor the most approved in use. Second. That defendant negligently failed to provide a safe place for plaintiff’s intestate to work; that said Johnson was not aware of the unsafe condition of the switch, nor that the same was unguarded and open. Third. Defendant negligently failed to keep a man at said switch to adjust the same and keep it in proper place, which it was its duty to do. Fourth. By reason of the manner of the operation of the railroad, in not fastening the front car to the train nor to the cable. Fifth. That defendant had negligently failed to keep said switch in its proper position, and negligently allowed said switch to remain open at the time said train approached and ran into the same. Question is made in argument whether these are charges of negligence against the defendant directly, or of the coemployees of the deceased, and whether section 1307 of the Code applies to this case, so as to make the defendant liable to employees for the negligence of their coemployees. In, the view we take of the case, it is unnecessary that we determine these questions.
Assuming that defendant is liable for all the acts of negligence charged, we inquire whether, under the evidence, the court erred in directing a verdict for the defendant. “Our conclusion is that, when a motion is made to direct a verdict, the trial judge should sustain the motion, when, considering all of the evidence, it clearly appears to him that it would be his duty to set aside a verdict, if found in favor of the party upon
The evidence certainly does tend to show that the switch was open on the empty track because of having been left latched by the night men, and that it had been left thus, up to the time deceased was injured. This leads us to inquire whose duty it was to see that that switch was unlatched, and in position for the day’s work. It willbe noticed that, when unlatched, the switch was closed, as to the empty track; and, when cars were run across onto the main track, it closed itself, after their passage. All that was required to set it for the day’s work was to unlatch it, so that it would open and close with the passage of cars from the empty track. William Calvert, who had charge of the day men, testified, as to the duties of deceased, that, “If there was any such thing as a latch, unlatched, why, he was the man, but if there was anything broke he reported it.” He further states as follows: “At 7 o’clock in the morning Johnson started from the bottom of the shaft, to grease it. He would take his can of oil, and start at the bottom of the shaft, and go to the end of the tunnel, and grease along, and see that everything was all right;” and that if a switch was open he would shut it. Also, that Johnson oiled the rollers, and kept the road clean, and that it was Johnson’s business to take care of and repair the rollers, and that no man was kept at any of the four switches. Mr. Roberts, foreman, testified to Johnson’s business as follows: “He attended to the switches, always, and greased the switches as he passed along in the morning. There is a plate under the point of the switch that the point runs on. He greased it as he passed along. Nobody looked after them, unless he reported them to me, and I would send a man to repair them.” In answer to the question, “whose business was it to see that the switch was closed in the morning!” Mr. Roberts answered,