160 Iowa 78 | Iowa | 1913
The accident occurred about 9:30 p. m. on the night of December 14, 1909, a cold and stormy night. It occurred on Iowa street, which was one of the main streets of the city between Momingside and the city proper. Iowa street runs north and south. The street car in question came from the south. The railway train came from a general northeasterly direction, but turned due west as it approached Iowa street. For the distance of nearly one block up to the point of collision the freight train was moving due west from east. Across Iowa street running east and west the company was maintaining twelve parallel “stub” tracks. These covered an area in width of about one hundred and fifty feet, extending from Third street south, Third street being an east and west street lying immediately north of the place of collision. The following plat will aid i» an understanding of the record:
It will be noted from the diagram that the parallel tracks in question number from one to twelve beginning at tbe south' side. The collision in question occurred at the intersection of track eleven. On the night of the accident these tracks were largely occupied by standing freight cars extending up to the sidewalk line. This was true of tracks ten and twelve. Track eleven, however, was open. As the street car approached the tracks from the south on the night in question it was stopped while its conductor proceeded ahead over the tracks as far as track nine. From track nine the conductor could . see for a distance of fifteen or twenty feet from the street along track eleven. He neither saw nor heard any sign of an approaching train, and upon his signal the street <?&¥
II. Was the decedent guilty of negligence on his own part which contributed to his injury ? This is a crucial question, and is not without its difficulties in this record. As already indicated, the decedent was in full charge of the train, and clearly he was responsible for the manner in which thé train was made up and for the manner of its operation. The night was cold and the rails were frosty. Each car was equipped with an air brake, but none of these air brakes were coupled. The only brake, therefore, in use upon the train
*85 Sec. 2079. On New or Repaired Cars. No corporation, company or person operating any line or railroad within this state,. or any car manufacturer or transportation company using or leasing cars therein, shall put in use any new car or any old one that has been to the shop for general repairs to one or both of its drawbars, that is not equipped with automatic couplers so constructed as to enable any person to couple or uncouple them without going between them.
See. 2080. On All.Cars. After January 1, 1898, no corporation, company or person, operating a railroad, or any transportation company using or leasing cars, shall have upon any railroad in this state any ear that is not equipped with such safety automatic coupler.
Sec. 2081. Driver Brake on Engines. No corporation, company, or person operating any line or railroad in this state shall use any locomotive engine upon any railroad or in any railroad yard in the state that is not equipped with a proper and efficient power brake, commonly called a ‘driver brake.’
See. 2082. Power Brake on Cars. No corporation, company or person operating a line of railroad in the state shall run any train of ears that shall not have therein a sufficient number of cars with some kind of efficient automatic or power brake to enable the engineer to control the train without requiring brakemen to go between the ends or on the top of the ears to use the hand brake.
Section 2083 provides that a violation of any of the four preceding sections shall be deemed a misdemeanor and punished accordingly.
It will be noted that these sections prescribe the duty of the operating company to equip its ears with “automatic couplers” and “power brakes.” These requirements purport to be made for the protection of employees. The declared purpose is to dispense with the necessity of requiring hrakemen to go between the cars for coupling purposes or on top of the cars for braking purposes. In the case before us all the ears were properly equipped with air brakes and literally answered the call of the quoted statute, but these air brakes were not connected. Section 2082 does not require that all ears in a train shall be equipped with an ‘ ‘ automatic or power
There are certain rules of law applicable to “customs.” These rules are usually applicable to what is called the custom of a trade or locality. In an appropriate case a custom may be made the basis or measure of a liability. It may become a part of an implied contract. In such cases universality, certainty, notoriety, and perhaps other characteristics
We think they cover the ease concretely and fairly, and furnish the appellant no ground of complaint.
Other minor errors are stated, hut we find them without merit.
The judgment below must be Affirmed.