143 Iowa 152 | Iowa | 1909
The action was originally brought against the Davenport, Rock Island & Northwestern Railway Company and the Chicago, Milwaukee & St. Paul Railway Company. We shall hereafter call one the “Davenport Company” and the other the “Milwaukee Company.” It appears that the Davenport Company’s road runs east from Davenport to Clinton, and that the Milwaukee Company was using the same line for the conduct of its business between these two places. When running on the Davenport Company’s line, the Milwaukee Company was subject to the rules of the former company and to the orders of its train dispatcher. Plaintiff was in the employ of the Davenport Company as an engineer of its work train, which was known as “No. 21,” and on, the day of the accident in question, May 1, 1907, he was out on the road with his train’ and at Princeton station,
It is claimed that when Wiegand, the engineer of train No. 849, saw plaintiff’s engine, he did all in his power to stop it, and that when he saw a collision was inevitable, and that the, water spout at the tank was across the track, both he and his fireman jumped in order to save themselves from injury. Train No. 849 passed the Le Clair depot at 2:14 p. m. The negligence charged against the Milwaukee Company is: (1)' That it ran its train 849 into Le Claire at a high'and dangerous rate of speed; (2) that it violated a rule requiring trains to reduce speed in jpassing through yard limits and to proceed only as the way is seen or known, to be clear; (3) that it violated a special rule as to Le Claire station to the effect that in approaching said station the engineer was to reduce speed and have his train under control until the engineman saw that the way was clear; (4) that train No. 849 went by a stop signal at Le Claire, against a rule providing that a train must not pass while the “stop” signal is indicated; and (5) that the engineer of No. 849 negligently failed to stop his train before the collision. Certain rules of the Davenport Company which were also applicable to the Milwaukee Company are important to the case, 'and we here set them out. The first is known as “No. 99,” reading as follows: “When a train stops or is delayed under circumstances' in which it may be overtaken by another train, the flagman must go back immediately with stop-signals a sufficient distance to afford protection. When recalled, he may return to his train, first placing two torpedoes on the rails, when the conditions require it. The front of a train must be protected in the same way, when necessary, by the front brakeman, or in his absence by the fireman.” Other rules read:
“No. 105. Both conductors and enginemen are responsible for the safety of their trains, and under condi*157 tions not provided for by the rules must take every precaution for their protection.
No. 106. In all cases of doubt and uncertainty, the safe course must be taken and no risks run.
No. 20J. Train orders must be addressed to those who are to execute them, naming the place at which each is to receive his copy. Those for a train must be addressed to the conductor and engineman and also to any one who acts as pilot. A copy for each person addressed must be supplied by the operator.
No. 2.10.- Conductors must show their train orders to flagman and engineman to fireman, who are required to read them.
No. 220. Train orders, once in effect, continue so until fulfilled, superseded or annulled.”
In addition to these were the following: “All trains approaching Le Claire and Princeton in either direction will reduce speed and have trains under control until engineman can see that the way is clear, and all trains will reduce speed in passing through yard limits and proceed only as the way is seen or known to be clear. A fixed signal must be used at each train order office which shall indicate ‘Stop’ when there is an operator on duty, except when changed to ‘Proceed’ to allow a train to pass after getting train orders or for which there are no orders. A train must not pass the signal while ‘Stop’ is indicated. The signal must be returned to ‘Stop’ as soon as a train has passed. It must be fixed at ‘Proceed’ only when no operator is on duty.”
On the issues joined the jury returned a verdict in favor of the Davenport and against the Milwaukee Company, and in answer to special interrogations made the following findings: “(1) Was Cahill’s engine protected as required by rule No. 99 while it was at the tank taking water? Ans. No. (2) Did Cahill, while his engine was at the tank taking water, rely upon the protection given
The appeal is by the Milwaukee Company, and for a reversal it relies upon the following propositions: (a) The trial court erred in not directing a verdict for defendant because the evidence showed that plaintiff was guilty of contributory negligence, and there is a total absence of testimony showing any negligence on the part of Engineer Wiegand after he discovered plaintiff’s peril.; (b) because the court was in error in submitting the doctrine of last clear chance to the jury; and (c) because the court should have sustained defendant’s motion for a judgment based upon the answers to special interrogations Nos. 1, 2 and 3. No complaint is made of the instructions, save it is contended that the court was not justified in submitting the case on the doctrine of last clear chance for the reason that no such issue was tendered by the pleadings.
It would seem that violation of the terms of rule 99 would not under this instruction of itself constitute contributory negligence. Indeed under the rule itself some-discretion is vested in the engineer in regard to sending out a flagman in front of a train. That being true, the ultimate question of contributory negligence was for the jury. Canon v. Railroad 101 Iowa, 613; Christiansen v. Railroad, 140 Iowa, 345.
Moreover, testimony was taken on the issue and defendant asked the following instruction with reference thereto: “If you find that Wiegand, under instruction No. 24, exercised reasonable care in avoiding injury to Cahill, after he knew Cahill’s engine was at the water tank, and also find Cahill was guilty of contributory negligence as defined in paragraph 20, then plaintiff can not recover against the Chicago, Milwaukee & St. Paul Company.” Having asked this instruction, it is in no position to complain. Seibert v. Insurance Co., 132 Iowa, 58.
We discover no prejudicial error, and the judgment must be, and it is, affirmed.