Calkins v. Chicago, Milwaukee St. Paul Railway Co.

92 Iowa 714 | Iowa | 1894

Kinne, J.

I. The petition charges that while plaintiff entered between the tender of the locomotive and a freight car to couple them together, and while he was in the act of making said coupling, and without any negligence on his part, “the engineer in charge of said engine, carelessly, and recklessly, and without aPy warning to plaintiff, suffered the brakes of said engine to become suddenly detached from the wheels, and in consequence thereof said engine and tender were permitted to back down with great force and violence, by reason of which plaintiff was caught by the right hand between the draught irons of said tender and car, and three of his fingers on said hand mashed” so that they had to be, and were, amputated. Defendant admitted that plaintiff was in its employ as a brakeman, as claimed, and that he received certain injuries to his right hand, and denied all other allegations of the petition. At the close of the evidence, and on motion of defendant, the court directed the jury to find a verdict for the defendant, which was done, and a judgment was entered thereon.

1 II. It appears that on the night of April 22, 1892, plaintiff was the head brakeman upon a freight train on defendant’s road which was going north from Ottumwa. The train stalled while going up a steep grade called “Haysville Hill,” just south of the station of that name. When the train stopped, plaintiff went back, cut off eight cars, and the engine pulled them into Haysville. After setting these cars out, the conductor remained at the switch, while plaintiff went back, with the engine, to get the remainder of the train. In backing down, steam was shut off when the engine got upon the grade, and it moved by its own momentum, checked occasionally by the air brakes, and came to a full stop about ten feet away from the cars standing upon the grade. Plaintiff went forward to make the coupling. The link and pin had been left .in the head freight car. When uncoupling the train at that place the pin had stuck, and plaintiff pulled the one in the forward car. On returning to couple the engine, he made no attempt to remove this pin and link and to place it in the drawbar of the tender, but, having his lantern on his arm and heavy mittens on his hands, he said to the engineer, “About ten feet back, Dave,” and at the same time gave him a “slow” signal with his lantern. The engineer backed slowly, and, when within three or four feet of the cars, plaintiff stepped in, took hold of the link to guide it into the pocket of the drawbar, and was caught by the hand, and three fingers mashed. Plaintiff, as a witness, was asked, “Would you have pulled the pin in the dead car, and put it in the engine!” He answered, “No, sir; I would not, for there was no link in the engine.” The court, on motion of the defendant, struck out all after the words, “No, sir,” of which plaintiff complained. The responsive part of the answer was permitted to stand. The balance was in the nature of an explanation or reason, and not called for by the question. Besides, this witness had already given the same reason; so, in any event, plaintiff could not have been prejudiced.

2 III. Other alleged errors in rulings upon the admission of testimony can not be considered, as the assignment of errors is not sufficiently specific. The assignment relates to many different rulings, and they are grouped together in this assignment. It is impossible to know what particular error is relied upon, except by a resort to the argument. Code, sec. 3207; Smola v. McCaffrey, 83 Iowa, 761, 50 N. W. Rep. 16.

3 4 IY. The negligence charged is in suffering the brakes on the engine and tender to become suddenly detached from the wheels, in consequence of which the engine and tender were permitted to back down with great force and violence. The theory of plaintiffs seems to be that by releasing the brakes the engine was permitted to back down too suddenly; its speed being, accelerated by its weight, and the fact that it was going down grade. The only testimony introduced relating to the manner in which the injury was caused was that of plaintiff. We quote a portion of his evidence. ‘ ‘When I gave the signal the engineer commenced to back up. Slowly. I don’t know whether he used steam or not. I could not say whether the engineer used any steam from the time he stopped the engine until the accident occurred. I have no knowledge of that. But I know that when I gave this order he commenced to back slowly. It kept getting a little slower until about four or six inches, I should judge. After it got started nicely it commenced to get a little slower. Its motion all the time was slow. As it drew near I stepped in where I could reach it handily. Then they came together with a good deal quicker force. The engine did not stop at all from the time it started until the accident occurred. I am sure of this. * * * Prom the time he stopped there, ten feet away, I don’t know whether he used any steam or not. I don’t know whether he used the air brakes or not, but I could hear the air brakes being used. The engineer or the fireman used the air brakes. I could tell they were using it, because I could hear the noise, and I could see the brake shoes on the tender draw up once in a while and relax. They are the pieces of iron that press against the wheels and stop them. They drew up and relaxed as if he was applying the air slightly. I don’t know whether he was using the air just before the accident or not. I could hear him using it in some way. This was both before and after I took hold of the link. I don’t know whether he was using it, releasing it, or setting it. I could hear a kind of a sob. Well, I should say that he was using it in some way. I heard it just before and after the accident. I could not tell whether this indicated that the air was being applied or let off. I don’t know whether the engineer, from the time I took hold of the link until the time of the accident, applied the air, or let it off. I don’t remember now. I don’t know whether he applied or let off steam, or whether he used steam or not.” From this evidence, it does not appear that the accident was caused by reason of the acts charged, nor- it it shown that there was any fault or negligence on part of the defendant. The petition charges that the brakes were released after plain-' tiff had entered between the tender and the car, and had taken hold of the link. In his testimony, plaintiff says he could not tell whether the engineer, from the time he (plaintiff) took hold of the link until the accident happened, applied the air, or let it off. He thus failed to establish his cause of action, and the trial court properly directed a verdict for the defendant.

In view of the disposition we have made of the case, it is not necessary that we should pass upon the questions presented in defendant’s motion. Affirmed.