170 Iowa 452 | Iowa | 1915
The injury complained of was received near Stockton, Illinois, and the petition claiming damages is in
two counts, the first declaring the defendant liable in consequence of the negligence of its engineer under the provisions of the Act of Congress, approved April 22, 1908, known as the Employers’ Liability Act,' and the second under the common law. The latter was withdrawn from the jury on the ground that “defendant company is not liable for injuries received by one of its employes through the negligence of his fellow servant in the state of Illinois.”
The defendant’s line of railway extends from Chicago through Byron, East Stockton and Stockton on to Dubuque and through Iowa. East Stockton is about one and one-half or two miles east of Stockton, and Kent is about the same dis
A train came from the east on the east main track to one of the cross-overs indicated on the plat, in order to reach the west main line, and this west main line is disconnected from the line immediately east of it.
On the 18th day of November, 1910, the train crew picked up a train of 25 or 26 cars of gravel at Byron, some 40 miles east of Stockton, and moved it westerly until reaching the west main line, and, cutting off the caboose, shoved the cars on a sidetrack. In the morning of the 19th, they took the engine and caboose from Stockton to East Stockton, and going to the yards got what is known as a plow car and seven cars of gravel, took them to the west main line, and, after going west, backed the same to a point near the semaphore and unloaded some of the cars on the track. The gravel fell from the “V” shaped bins to the middle of the track and the plow car coming behind leveled this off. On backing to unload at another place toward the east, with the plaintiff standing on the plow car near the sand box (a sand box three or four feet high was at each end), the conductor and possibly the brakeman gave the engineer a signal to “slow down.” As the engineer applied the air to the brakes, the plow car jerked and threw plaintiff from the car across the rails below and he was seriously injured.
In the twenty-fifth instruction, the- jury was told that if such were not the rule or custom, or if the two blasts were sounded, or if there was no unusual and violent jerk the verdict should be for defendant. If such were the customary practice, then the plaintiff might have been found to have had the. right to rely upon the signal before there would be any jerk from the service application of the brakes, and even though there may not have been sufficient evidence to show negligence in the manner of applying the air, the jury might well have concluded that, in so doing without warning, the defendant was negligent. True, a witness testified that there was no such rule, but as plaintiff had testified there was, this merely put the existence of such a rule in issue. One was introduced reading that “when a signal (except a fixed signal) is given to stop a train, it must be acknowledged as prescribed by Rule 14 (G-).” Rule 14 required that two blasts shall “answer to any signal not otherwise provided for.” What is meant by a “fixed signal” is nowhere explained, and, moreover, the existence of the printed rule did not obviate
Other evidence of similar character was adduced. The defendant was engaged in interstate commerce over this line of railway; it had used this particular track on which to store at least two trains actually bound from points in Illinois to Oelwein, Iowa; the construction had been sufficiently completed for that purpose and what was being done might well have been found to be merely leveling the grade and filling up depressions therein for continued use in interstate commerce. Certainly the jury might have so found under the evidence, rather than that what was being done was a part of the original construction of the roadbed disconnected from its use; and if so, there was no error in submitting to the jury whether what was done was in the maintenance of the roadbed being used in interstate commerce or in the original construction of the same. If the former, then plaintiff Avas engaged in interstate commerce at the time of being injured and must recover, if at all, by Adrtue of the so-called Employers’ Liability Act of Congress. Pederson v. Ry., 229 U. S. 146.
In addition to this, the plaintiff alleged that he was incapable at the time of signing the release to execute a valid contract. The trial court declined to submit the issue of fraud raised by the reply, and as plaintiff has not appealed, we have no occasion to pass on that ruling, (see however Haigh v. White Way Laundry Co., 50 L. R. A. (N. S.) 1091, and eases collected in note); but did submit the question as to whether the plaintiff was capable of and did appreciate the conditions of the release. Appellant contends that the evidence is insufficient to show that the plaintiff was unable to comprehend what he did at the time of executing the release. The plaintiff testified:
“I have heard of the rule that employes are required to sign releases before they return to work; I knew there was such a rule. In a general sense I knew what a release was. Dr. Davis told me at the time Mrs. Clark was with me that there was nothing the matter with me but the nerves and in order to get well, I must go back among the men, get back among my old associates and forget it, told me the only way I would improve would be to get among the men and forget it, get it off my mind. I told Mr. Causey what Davis had told me when I went to report for work, told him the doctor said I would get well faster if I went to work. Mr. Causey told me I ;would have to sign a release. I don’t know as I said, ‘I know it,’ but I might have said I suppose so, or something of that kind. I knew the nature of the paper I would have to sign was termed a release. I cannot say that Mr. Causey told me anything I didn’t already know, when he told me I would have to sign a release. Then he said he would pay me for time lost, and I responded ‘very well’ or words to that effect. That is all the conversation I had with*460 him. There was no talk about any payment in the future; the only thing I remember was speaking about my eyesight and hearing and he told me that wouldn’t be held against my physical examination. So far as my receiving any more pay if I didn’t get well as the doctor thought I would, there was nothing said, either by me or by Mr. Causey about receiving any additional compensation. . . . There was no indication to me that if I did not get well I would be entitled to any more. According to the doctor’s report to me, there was nothing to get well only the nerves; I felt some pain and felt I had not been improving as fast as I should; I did not feel I was already well, knew I was not well when 1 went to talk to Mr. Causey. The doctor told me it was the only way I would get well; I knew I was not well at the time. . . . I did not read the release when I signed it, did not pay much attention to it, I knew I had to sign it, so I just signed it without looking at it. The instrument, defendant’s ‘Exhibit A,’ is the release I signed in the superintendent’s office, that is my signature. I could read at the time I signed that release. I think I stood up and signed it on a table; it was handed to me by Mr. Johnson’s clerk. . . . I talked over with Mrs. Clark the matter of going back to work and if I remember right, she did not want me to go to work; we often talked over the advisability of taking Dr. Davis’ advice and returning to work; as I remember she protested against it, protested against my signing anything; told me, after the conversation with Dr. Davis in which he referred to signing up, not to sign anything, and protested against me doing it. She asked me when I went to work, not to go, regardless of what the doctor said. The day I reported she requested me not to; she warned me not to sign anything.”
The superintendent and the clerk present testified that they noticed nothing out of the way with plaintiff at the time of signing the release. That Davis had prescribed certain pills for him to take in order to relieve him from pain