74 Iowa 154 | Iowa | 1888
I. At the time the plaintiff was injured, the following rule adopted and promulgated by the defendant was in force : “ Brakemen and switch-men, in coupling or uncoupling cars, must not assume that signals given to the engineer or fireman will be obeyed, when obedience to a signal thus given by a brakeman or switchman to an engineer or fireman is essential to the safety of the brakeman or switchman in the performance of a duty. He must know that the signal must be understood, and is obeyed, before he places himself in a position of danger, relying on such obedience. When he acts without such knowledge, he assumes all risk of danger arising from misunderstanding or disobedience of signals.” The plaintiff had knowledge of such rule, and the movement of the train was controlled by signals given by him to the fireman, who was acting as engineer at the time. The accident occurred at Muscatine, ¡about two o’clock in the morning, in October, 1885. The plaintiff testified: ‘‘In undertaking to make the coupling, " * * I gave the signal to stop,1'walked in, took hold of the link, and got caught. * * * After giving the signal I walked off to make the coupling. * * * The train , was going very slow when I gave the stop-signal. About the time I took hold of the link, there was a sudden jerk, increasing the speed. It had a short distance to go, but I think they doubled that speed anyway. When I gave the signal to stop I did not intend them to stop immediately; I intended for them to slack up, or. not to come any faster, not to work any more steam. * * * I did not expect them to go any faster. I did expect that they might go faster unless I told them not to. They are liable to if they do not get a signal. It is not customary to increase the speed without a signal. It is sometimes done, when an engineer gets a signal to back up. Sometimes he relies on his own judgment. * * * If they do not get a signal to slacken up in the course of business, they use their own judgment, and increase the rate of speed. Sometimes that occurs in the course
As the court had instructed the jury that the rule was a proper one, and should be enforced, it necessarily followed that, if it was violated by the plaintiff, he could not recover, and the jury were so instructed. Under the rule it .was incumbent on the plaintiff to know that his signal had been seen by the person in charge of the engine. He had no right to assume that it had been seen, orto act upon his judgment that the speed was such that he could make the attempt to make the coupling, whether his signal had been seen or not. He had no right to determine that the speed was not dangerous, and, therefore, it was immaterial whether his signal had been observed. For he knew that, unless liis signal’had been seen, the speed of the train was sometimes increased by the engineer, and this very thing occurred in this case, and was the cause of the accident. The vice of the instruction is that the judgment and discretion of the brakeman are substituted for and take the place of the rule. It is obvious that this instruction abrogates the rule, and if such be the
It is not deemed material to determine the other errors discussed by counsel.
Reversed.