83 Iowa 346 | Iowa | 1891
Lead Opinion
It will be seen that the plaintiff went - upon the track when he knew it was dangerous for him to do so because of the switching, and that he might have avoided that danger by going at a different time. Being on the track, he saw the car, without a brakeman on the front end, approaching him within one hundred feet, “at a good jog, twice as fast as usual.” He, without looking to see upon which track, when a single glance would have revealed the fact, stepped upon the passing track, and was injured. Surely, such actions, unexplained, cannot be considered other than the grossest negligence.
Two facts are argued in explanation, either of which it is claimed show that he was not negligent, to-wit, the custom of moving the car on the main line, and that the plaintiff in the line of duty had turned to. warn the man with a team on the crossing. There was no inflexible rule that prevented the defendant from moving its car back upon the passing track, if, as in this instance, its business required it. It was the custom for the defendant’s train to go west at seven a. m., but-it would be no excuse to one who saw it coming that he turned his back, and did not get off the track, because the train was behind time, and not passing as was customary. If we may call the practice of moving the car a custom, still it was a custom that was liable to be varied, and the plaintiff must have known that the car might rightfully be moved back onto the pass
The only testimony upon this subject is that of the plaintiff himself, which we have already quoted. It does not appear that he gave, or attempted to give, any warning to the man in charge of the team. He -says: “It came into my head that there was a team •across the track at the depot, and I turned and saw
It seems evident from these statements that the plaintiff’s movements were influenced entirely by the belief that the car would move down the main line. He did not even attempt to give any warning to the man on the crossing, and we may say, from the distance that he was from the crossing, probably could not do so. He does not say that he turned around to give warning, but “turned around to see if it was there.” The conduct of the plaintiff, as shown in this testimony, furnishes another of the many instances in which men engaged in dangerous employments become-negligent as to the dangers about them. No ordinarily prudent, cautious man, alive to the dangers of the-situation, would have gone upon those tracks at the time the plaintiff did, or, if upon them, would have yielded to idle curiosity, and'failed to have avoided the dangers which overtook him and caused his injury. No reason, whatever, is offered for his going upon the track when he did. It was a time of danger, and his.
The judgment of the district court is affirmed.
Dissenting Opinion
(dissenting). — I. The evidence shows-that the duties of the plaintiff required him to go upon the railroad tracks at the locality where the accident occurred, and that at the time he was injured he was. upon the tracks in the discharge of his duty. It is also shown, without conflict in the evidence, that by the uniform and unvaried custom and course of business of the defendant’s employes in attaching the combination car to the train it was never moved upon the “passing track,” but always, upon the arrival of the
II. Upon these facts, in addition to those stated in the opinion, I conclude, first, that the evidence tends to show that the defendant’s employes in charge of the ■combination car, and the locomotive moving it, were negligent in using the “passing track” on the occasion without warning or signal, contrary to the custom and course of business of the plaintiff and its employes; in running the car at an unusual speed, and without a brakeman or other person upon it to control its movements, and keep a lookout to warn others of danger, ■on account of the movements of the car; and, second, that the plaintiff did not contribute to his injury by his ■own negligence.
III. The facts which I have just stated plainly tend to show the defendant’s negligence. Its duty required -it to use sufficient precautions to guard against •accidents which might result from the disregard of its ■custom in handling the combination car. The evidence tends to show none. But it does tend to show unusual speed of the car without the presence of a brakeman or other person in control of it, or give notice of warning of its approach. There is no evidence of any warning of the approach of the car upon the passing track. Other grounds upon which negligence may be inferred could be mentioned.
IV. The plaintiff was authorized to presume that the usual custom and course of business in handling the combination car would be followed, and that the ■employes in charge of the car and locomotive would act in accord with the usual custom, and with proper care to avoid accidents. Resting upon this presumption, he was authorized to believe that the combination •car was on the main line, and it was not, therefore,
Y. But it is said that, if he had stopped and looked, he could have seen the switch was so set as to show the approach of the car upon the “passing track.” This position maybe, for the purpose of the case, admitted. But the defendant believing, as he was authorized to believe, that the combination car was o'n the main track, his vigilance, caution, and even instincts for self-preservation, were overcome by his belief, which stood in the place of knowledge, and prompted his action. Men of intelligence and ordinary prudence would have acted in this way. He is not, therefore, to be charged with the effects of negligence.
YI. Besides, men required to act with promptness are not negligent because they do not stop and hesitate, and consider whether the knowledge and beliefs they possess and entertain are correct, and thus delay action until probably the time is passed in which they may be able to act. In the running and management of trains, promptness and decision are demanded. Therefore, employes must be permitted to act upon the belief and presumption that all customs and rules usually followed in all like cases are observed and obeyed in the matters wherein they are called upon to act. I reach the conclusion that the defendant was negligent, and that the plaintiff did not contribute to his injury by his own negligence.
Therefore, in my opinion, the judgment of the district court ought to be reversed. '