129 Iowa 747 | Iowa | 1906
The appellant was a brakeman in defendant’s service, and at the time of his injury was employed upon a freight train operated over the defendant’s road in Indian Territory. On the 20th of January, 1898, as the train was nearing the station at the town of Mineo, the coupling between two of the cars accidentally separated without attracting the attention of the trainmen, and the forward section of the train moved on to the station, where a stop was made for water. While appellant, who had heen riding on the engine, was assisting in drawing the water, the rear section of the train, moving down the grade, collided with the standing cars. In this collision appellant’s leg was crushed, necessitating amputation. This action for damages on account of such injury was begun April 19, 1899. The original petition, with some amendments thereto, having been superseded, need not be more particularly referred to. On. November 13, 1899, a substituted pleading was filed, alleging that appellant’s said injury was caused by defendant’s negligence.
The charge of negligence was in a single count, but was based principally on two grounds, as follows: (1) That the defendant’s road was negligently constructed, in that a sharp depression was made in the track so that freight trains passing over it were liable to become uncoupled, and that the danger thus created was greatly increased by operating such trains at that point at a high rate of speed, of
To parts of this petition defendant demurred as folIoavs : (1) To the allegation of negligence on part of the conductor, engineer, and trainmen, because such persons were the fellow servants of appellant, and defendant is not liable to him for injuries so received. (2) To the allegation as to a depression in the track, because the question whether the road should have been built on a different grade cannot be inquired into in this action, and it does not appear that such depression was the proximate cause of plaintiff’s injury, nor does it appear that defendant or its employes had any knowledge that the train separated at said depression in the track. (3) To the allegation as to a defective device for coupling and the allegation as to failure to provide a rule or regulation limiting the rate of train speed, because, in each instance, it appears from the petition that such alleged negligence was not. the proximate cause of plaintiff’s injury. Before the demurrer was ruled upon plaintiff filed an amendment to his substituted petition, alleging that defendant had negligently permitted its track at the place in question to become out of repair,
Our statute provides (Code, section 3559) that, where a petition includes more than one cause of action, each shall be stated in a separate count, which shall be complete in itself, and it is a matter of every day practice to require a pleader who fails to observe this provision and combines two or more causes in a single count to amend and state them separately. Now, if the plaintiff in the instant case in his original petition had alleged in a single count that the railway track was in. an unsafe and dangerous condition by reason of a sharp depression or excessive unevenness or rounghness therein, and that such condition was the result of the negligence of the defendant in the construction of the road and in failing to keep the sainé in repair, we think no one would contend that such an allegation would be objectionable as embracing two causes of action in one statement, and no court would sustain a motion to require- the allegations as to negligence in construction and negligence in failure to repair to he stated in separate counts. Negligence in itself constitutes no cause of -action.
Certain it is, the courts with practical unanimity hold that railroad companies constitute no exception to the general rule which requires the employer to furnish his employe a reasonably safe place to work, and that the application of such rule extends to the roadbed and safety of the track over which trainmen are required to operate their trains. If inquiry into the construction of the road cannot be made by a jury because it may involve qimstions of engineering or mechanics or scientific or expert discussion, then, for equally good reason, can inquiry into the reasonable safety of the place of work be suppressed in substantially every action brought by servant against master. Smith v. Railroad (C. C.), 18 Fed. Rep. 304; Penn. Co. v. McCormack, 131 Ind. 250, (30 N. E. Rep. 27); Pahlan v. Railroad, 122 Mich. 232, (81 N. W. Rep. 103); Lake Erie Railroad v. Morrisey, 177 Ill. 376, (52 N. E. Rep. 299); Stoher v. Railroad (Mo. Sup.), 4 S. W. Rep. 389; St. Louis Railroad v. Irwin, 37 Kan. 701, (16 Pac. Rep. 146, 1 Am. St. Rep. 266); Chicago, etc., Railroad v. Swett, 45 Ill. 197 (92 Am. Dec. 206); Houston, etc., Railroad v. Oram, 49 Tex. 341; C. M. R. R. v. Naylon, 17 Colo. 501, (30 Pac. Rep. 249; 31 Am. St. Rep. 335); Meloy v. Railroad, 77 Iowa, 746; Bryce v. Railroad, 103 Iowa, 665; Chicago, etc., R. v. Eaton, 194 Ill. 441, 62 N. E. Rep. 784; C. G. & W. R. v. Price, 97 Fed. Rep. 423, (38 C. C. A. 239); Patton v. Railroad, 82 Fed. Rep. 979, (27 C. C. A. 287); Paulmier v. Railroad, 34 N. J. Law, 151; Elmer v. Locke, 135 Mass. 575; U. P. Ry. v. O’Brien, 49 Ned. Rep. 538, (1 C. C. A. 354, 4 U. S. App. 221), affirmed on appeal, 161 D. S. 451,
We have preferred, however, not to dispose of the appeal on this rule of pleading alone, because, in view of a possible trial of the case upon its merits, it has seemed desirable to discuss some of the leading legal propositions argued hy counsel. Our conclusion that the petition states a cause of action makes it necessary to remand the cause to the trial court for further proceedings not inconsistent with the views herein expressed.
The judgment appealed from is therefore reversed.