Conway v. Ill. Cent. R.

50 Iowa 465 | Iowa | 1879

Bothrock, J. —

i. negligence: pleading. I. It is first urged in argument by counsel for 'appellant that the petition does not state a cause a°tion. Without taking the time and space necessary to a discussion of this objection we deem it sufficient to say that the petition details a series of .negligent acts upon the part of the defendant which, if true, constitute a cause of action. It is averred that some of the freight cars were not high enough to couple with the Miller buffer and coupler without the aid of a crooked link; that defendant, its officers and agents, superior in authority to plaintiff, negligently and carelessly mixed the freight cars so that plaintiff, in the discharge of his duties of coupling, did not and could not know whether the freight cars to be-coupled to the baggage car were high enough and suitable to be coupled to the same. There are proper allegations as to .the negligence of defendant’s officers and agents, at the time the accident occurred, in backing up a freight car which was ‘too low to be coupled to the baggage car without a crooked link, the plaintiff’s ignorance of that fact, and his attempt to couple with a straight link, which failed, and his consequent injury by the cars coming together with great force.

These allegations, coupled as they are with proper averments of the plaintiff’s care and diligence, gmd his requests before that made that the defendant should provide crooked, links for the use of plaintiff in the discharge of his duties, it seems to us is a sufficient statement of a cause of action.

II. It is objected that the first and second instructions given by the court to the jury are erroneous, because they are incorrect statements of the issues. In the first instruction the court stated that “the injuries were alleged to be caused by a failure to couple on account of the unequal height of the cars and the absence of crooked links.” It appears to us that this is a clear and fair statement of just what the plaintiff alleged in his petition, and couched in plain and unambiguous language, such as ought to be employed in framing instructions for a jury. Stripped of the verbiage of the petition it is just what the plaintiff complained of.

In the second instruction the court said: “The answer of the defendant contains a general denial, and also alleges that the accident, if any occurred, was caused by the plaintiff’s own negligence. ” * * * * *

That this was an incorrect statement of the issue as to contributory negligence cannot be denied; but we are not prepared to say that the judgment of the court below should be reversed for this error. It occurs, not in the charging part of the instruction, but in a mere recital of the issues, and in the very next instruction the jury are correctly informed that in order for the plaintiff to recover he must prove “* * * that the injury occurred without any negligence or fault on the part of the plaintiff which contributed to produce it.”

It is not necessary, however, that we should determine whether this error in the statement of the issues was prejudicial, in view of the fact that the cause must be reversed upon the ground to which we will now direct our attention.

2_. rail_ i? caro re?ree ' III. In its ninth instruction the court said to the jury: “It was the duty of the railroad company to furnish cars and appliances for operating the same that are not dangerous to those engaged in their operation, and if it failed in this duty, and the plaintiff was injured thereby, without any fault and negligence on his part, . the company will be liable, and you should so find.” * . * * This proposition is clearly erroneous. It was doubtless a mistake which inadvertently occurred, for there can be no doubt that the learned judge, who tried the ease in the court below, never intended to say to the jury that cars and appliances which are not dangerous in their operation are required to be furnished by a railroad company. That the operation of all railroad trains is necessarily attended with danger is the universal experience of mankind. All that the law requires of a railroad company to protect itself against claims for personal injuries by its employes is reasonable care in providing safe cars, machinery and appliances.

It is urged by counsel for appellee that this part of the instruction is not erroneous when considered in connection with other instructions which were given. It is true the court, in its fourteenth instruction, directed the jury that “if the railroad company used such cars and appliances for coupling the same as are in ordinary and common use by first-class railroads through the country, that is all the law requires or demands of them.” * * * * *

The most that can be claimed for this, and some other expressions in other instructions, is that they are impliedly •contradictory of the ninth instruction. Which of these contradictory instructions the jury followed it is impossible to determine, and we cannot say there was no prejudice resulting from the error.

Other objections raised by appellant need not be considered, as the judgment, for the error above pointed out, must be

Reversed.