173 Iowa 207 | Iowa | 1915
On the part of plaintiff, it was claimed that the decedent was injured by being struck by the chunker timbers of a coal mine, which were so erected as to extend over the top of ears being moved on the switch serving the mine, and near enough above a car to strike a person standing on top of a car, unless he stooped down or stepped to one side of the ear, while passing them. It was claimed by the plaintiff that these timbers had been there long enough so that
‘ ‘ The death of Grover C. Adams was so caused by the said negligent acts of the defendant while the defendant, at the time and place aforesaid, was not engaging in commerce between the states, and while the defendant was not engaged-in interstate commerce, and while the defendant was then and there engaged in moving and transporting said train and cars from Centerville, Iowa, to Eldon, Iowa, only, and while all of said cars were empty, and while said Adams was so employed by the defendant in transporting a train of empty cars from Centerville, Iowa, to Eldon, Iowa, only.” ■'
On April 7, 1911, defendant filed its answer thereto, denying the allegations not admitted; admitted that, about April 7, 1910, decedent was in the employ of defendant as a brakeman on a freight train, and, while so employed, he received injuries which caused his death; denied the allegations that defendant and deceased were not engaged in interstate commerce, but alleged that, at the time decedent received the injuries from which he died, he and defendant were engaged in the management, movement and control of engine and cars engaged in interstate commerce, and that deceased was engaged as an employee of the defendant in the control, movement and management of cars and engine intended and destined from points in Iowa to points in other states. On May 10, 1911, plaintiff amended his petition as Count 2 as follows:
“Comes now the plaintiff and, for amendment to his*210 petition and for the purpose of setting up an additional count, not waiving anything that has been stated in his second substituted petition, filed April 4, 1911, and for the purpose of varying his allegations for the purpose of conforming the pleadings to any phase of the proof and the law as thé court may hold in the further progress of this suit, states as follows: Plaintiff here refers to the allegations of said second substituted petition and makes the same a part hereof with the same certainty and like effect as if herein fully set forth at length, except as the allegations of this count vary from' said substituted petition, as follows, to wit: for the purpose as aforesaid, plaintiff states that said transactions, as set forth in said substituted petition, were interstate commerce and governed by the laws of the United States.”
Plaintiff, having stated and set forth in the foregoing two counts the same transactions, with the inconsistent allegations as to the laws governing said transactions, here repeats his former prayer for judgment. Answering such amendment, defendant admitted that, at the time plaintiff’s decedent received said injuries, he was engaged as an employee in interstate commerce, and that defendant’s liability, if any exists in this case, is governed by the laws of the United States. The trial court held, as a matter of law, that decedent was not engaged in interstate commerce, and submitted the case to the jury as one coming under the statutes of Iowa governing such actions, instructing the jury that:
‘ ‘ The issues raised by the amendment to the petition filed by the plaintiff on May 10, 1911, and answer thereto filed by the defendant on May 12, 1911, are withdrawn from your consideration, as is also the evidence bearing exclusively upon said issues; and you are to determine this case solely upon the issues presented by the amended and substituted petition filed by the plaintiff on the 4th day of April, 1911, and the answer thereto filed by the defendant on the 7th day of April, 1911.”
At the close of plaintiff’s testimony, the defendant moved
The following facts were established, or there was evidence from which the jury could have so found: That, on April 7, 1910, the date upon which decedent was killed, he was head brakeman on a freight train of the defendant company which ran from Eldon, Iowa, to Centerville, Iowa, and was there ordered to turn around and pick up a train of empties at Centerville and return to Eldon, taking what were known as foreign empties, or empties from other roads, in preference. . When the train reached Centerville, it was put on one of the sidetracks, and the engine was then uncoupled and turned around and taken to the water tank: the tank was filled with water preparatory to its return trip to Eldon. They then started to assemble their train by switching it from
We shall spend no time in setting out just how decedent was injured, because it is conceded in argument that, on the question of negligence, there was a jury question, and we understand defendant also to concede that such is the case on the question of contributory negligence, although defendant complains of one of the instructions on the last named proposition.
There were fifteen cars in this string of cars which the engine was pulling off the coal switch at the time decedent was killed. The “consist” of the train upon which deceased was working at the time he received the injuries, as appears from the conductor’s train book, shows that, of the fifteen ears on the mine switch, eight were taken out of Centerville and hauled to Eldon on this train. Of these eight, the destination of one was St. Paul, Minnesota, and another Silvis, Illinois ; but neither of these two was traced further than Eldon, and the same is true of another of these. The conductors and trainmen were brought and the records produced tracing one of the cars, a Southern Railway Company car, from one of the eastern terminals of the line at Joliet, Illinois, to Lineville, Iowa, a station beyond Centerville, with a load of machinery. Here it started back on its return trip. It first went to Centerville with a few eases of eggs and thence, via the train on which decedent was working, back to Joliet, where it was received. Each of the other four ears was identified and traced back by means of the conductors who hauled them and the records showing their movement from Centerville, Iowa, to Joliet, to Blue Island, or Burr Oak, Illinois, the end of the division of the appellant’s line on the Chicago Belt Line or Terminal Railroad. One of these four was a Kanawah & Michigan Car, No. 1318. It was on'the.mine switch and is the car on which deceased was at the time that he was
Many of the cases are reviewed in the recent case of Armbruster v. Chicago, R. I. & P. R. Co., 166 Iowa 155, 173. See also ,Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1; Behrens v. Illinois C. R. Co., (La.) 192 Fed. 581; Johnson v. Great Northern R. Co., (Minn.) 178 Fed. 643; Graber v. Duluth, S. S. & A. R. Co., (Wis.) 150 N. W. 489; Otos v. Great Northern R. Co., (Minn.) 150 N. W. 922; Roberts, Injuries” to Interstate Employees, pp. 68, 133.
“In the nature of the case, evidence cannot be very definite as to the actual amount of the pecuniary loss sustained in such a case.”
But we think that the evidence we have set out is a sufficient basis for the recovery of damages in some amount for the benefit of the sister and niece. We have set out the second count of the petition, and it is doubtful whether the pleading covers this point. But no question has been raised; so far as we are able to see, by the defendant as to whether the fact being now considered has been pleaded. And in some cases, as we understand it, the verdict should apportion the damages between the different claimants, if more than one. But no point is made on this proposition by the defendant.
We have had some difficulty in arriving at the true situation. At the time of the trial in the district court, the questions were new. The attorneys for each side seem to have had some doubt as to how to proceed at some points. There have been ten separate filings of printed matter and a certification of the evidence.
For the reasons given, the judgment is reversed and the cause remanded for a retrial and further proceedings in harmony with this opinion. — Beversed and Bemanded.