36 Iowa 372 | Iowa | 1873
We cannot, of course, in the proper limits of an opinion, discuss the evidence and give at length the reasons leading to our conclusions; we can only state results. First, as to the negligence of the defendant. Whether the accident occurred in the cut is not certain from the evidence. The jury must have found that it did, and this, in view of the conflict, is conclusive upon us. Negligence cannot justly be imputed to the defendant because of the fall of one of the men, a mere accident, or, the leaving of the hand-car by another in order to pull him from the track — a pure act of humanity. The only point whereon negligence can be grounded was the order by the boss, when the train was due, and without sending forward a sentinel, to proceed with the hand-car into the cut, where, by reason of the curve, the train could not be seen in time to secure the certain removal of the hand-car from the track. Whether this was negligence or not' is purely a question of fact for the jury, to be determined upon all the evidence and circumstances. They have found that it was; we cannot say as a matter of law, that it was not; nor, that the finding was
Second, as to the negligence of the plaintiff. It is said primarily, that if it was negligence for the boss to order the man to enter the cut with the hand-car, it was alike negligence on the part of plaintiff to go upon it, and that he should have refused. A judicial sanction to such insubordination would breed an infinity of accidents. Although the train was behind time, this would not justify the boss and men, who constitute the repairing force, in setting off their hand-car and awaiting the train. It might not arrive for hours, or possibly might itself be awaiting the arrival of the hand-car with men, tools and materials to repair a breach or remove obstructions which stayed its progress. The repairing force, then, should move on both prudently and obediently, to the discharge of it§, full duty. But, secondarily, it is said that the plaintiff was negligent in that he ran westerly, in the very line of promised destruction, instead of easterly, to a position of manifest safety. In the cool restrospect of the situation one will almost involuntarily say, “ how careless he was to run that way; ” and yet, if it be remembered that the plaintiff had stood by his duty in labored, faithful and perhaps confident efforts to remove the hand-car and avoid all danger, without the thought of other escape, until the last moment, and then, in bewildering terror as he turned to flee he found the hand-car east of him and the ponderous train, threatening death, approaching him from that direction, nothing was more natural or instinctive, than that he should take the open, way and flee from rather than toward the train which threatened him with destruction. Under such circumstances when the jury have said, as a matter of fact, that it was not negligence, we cannot, as a matter of law, say that t was.
Under these rulings is the plaintiff within the statute ? Acknowledging the cogency and power of the very clear and able argument made at bar by the senior counsel for appellant, we are, nevertheless, constrained, but with much of doubt, to hold that he is. In view of all the facts and the entire argument, the plaintiff was, it seems to us, in the language of the first case above cited, “ engaged in the business of a railroad company; ” or, in the language of the second, he was “ engaged in operating the road and the like; ” or, in the language of the last ease, his “ services related to the perilous business of railroading.” We do'not know that any argument we could make would add force or satisfaction to our conclusion.
This instruction embodies a substantially correct abstract proposition of law, and it would not have been error to give
IY. The court also refused to give the following instruction, asked by the defendant: “ 2. If plaintiff was notified or had knowledge of the approaching train, and was also notified by the person under whose charge he was working to get out of the way of the approaching train, and plaintiff had time and opportunity to do so and did not, then defendant is not liable.”
In the review of the question of fact, first above considered, the real and practical objection to this instruction is stated. It is, that although the plaintiff may have been notified to get out of the way, and had time and opportunity to do so, yet, the alarming and confusing circumstances surrounding the plaintiff may have been such as that a man of ordinary care and prudence might not have acted differently. In other words, the whole case could not properly be made to rest upon the three facts of notice, time and opportunity to escape. All the attending circumstances should be considered, and inasmuch as the instruction made the liability of the defendant to depend wholly upon the three facts stated, and excluded all the other facts and circumstances from the consideration of the jury, or ignored them, it was not error to refuse it. The difference is manifest between this case and the case of Wilds v. H. R. R. Co., 24 N. Y. 430. The same objections obtain with equal force and applicability to the third and fourth instruction asked and refused.
Under the evidence it was not error to refuse this instruction. We would not say that it might not properly be given in some possible case. But the bare fact, that a position to which an employee is ordered for the discharge of his duty is a dangerous one, will not justify his disobedience, since he was employed for that duty, and its discharge may be necessary to save the lives of others; and a failure to do his duty or disobedience under such circumstances might be negligence on his part, rendering the employer liable to others injured thereby. To assume a position of danger is not necessarily negligence; but it is often a clear duty; and an employee, in such case, even if injured, would have no right of action, since he was employed for such position of danger and paid for assuming it. If, however, the prior negligence of others unnecessarily created the danger, or, by reason of the negligence of others, the injury was caused to him, then he may have his action.
The exceptions to the instructions given are substantially disposed of in the ruling upon the second point above. We' have thus passed upon all the points made and discussed by counsel, and while we acknowledge to much of doubt as-respecting two or three of them, yet our best judgment, as-above given, leads us to order that the judgmeut of the court below shall stand.
Affirmed.