90 Iowa 259 | Iowa | 1894
The plaintiff is the administrator of the estate of P. W. Davies, who was killed on the twenty-first day of May,. 1890, while in the employment of defendant as fireman o'f the locomotive engine of one of its construction or work trains. ' His train left Coon Eapids in the morning of that day, in charge of Conductor Lyman, under orders to work between ■ the place named and Dedham'. An hour or more before noon the train was run into. Dedham, to clear the track for a freight train, known as No. 11; and the conductor there received an order that the west-bound passenger train designated as No. 3 would, be fifty-five minutes late. ■ The work train was run out a few miles, and was again taken back to Dedham. The conductor and others of the trainmen, including Davies, then took dinner in Dedham, at a place which was located about two blocks from the main railway track. The men sat at the same table while the meal was being eaten, and, it is claimed, the fact that No. 3 was late was mentioned by some of them. After they had finished eating, the men returned to the railway; the engineer and-fireman going to the engine, and the conductor and rear brakeman to the depot, to inquire about train No. 2. On being informed that it was late, the conductor ordered the brakeman who was with him to throw the switch for the main line, and gave the engineer the signal to go ahead. Before that time, No. 3, if only fifty-five minutes late, should have passed the station going westward, but it was then an hour and twenty minutes late, and had not reached it. The conductor had forgotten the train, and did not inquire for it of the operator, and it had also been forgotten by the rear brakeman. In obedience to the signal, the engineer moved the train onto the main line, and thence eastward. When about a quarter of a mile east of Dedham, the engineer discovered No. 3; -within a short distance, approaching at the rate of about for
I. It is not disputed that the conductor was negligent in not protecting his train against No. 3, but it is claimed that Davies should also have known that it had not passed the station, and that he was negligent in not calling the attention of his coemployees to that fact, and in going out on his engine, thereby contributing to the cause of his death. The rules of defendant in force, at the time of the accident, contained the following: “The safety of passengers and trains is of the first importance,’ and all operations of working and repairing the road must be subservient thereto.” ' “(98) All special orders for the movement of trains must be addressed to the conductor and engineer, of which three copies shall be made. * * *” “(100) A train must not leave a station, when directed to run by special order, unless the conductor and engineer have a copy of the same in their possession.” “(101) Conductors must in all cases show telegraphic orders pertaining to movement of trains to the rear brakeman, and, when practicable, to the forward brakeman. Engineers' must in all cases show the same to the fireman,- and when practicable, to the forward brakeman. Brakemen and firemen must report every instance when conductors and engineers fail to comply with this rule.” The order in regard to train No. 3 was dated at Perry, was addressed to the conductor and engineer, and read • as follows: “No three (3) will ran fifty-five minutes late from Perry to Co. Bluffs.” It was received by the conductor and engineer at 10:53 o’clock in the forenoon. The conductor read his copy of the order to the rear brakeman, the .forward brakeman being ab
If the claims now made by appellant are well founded, then it was the duty of the trainmen to-refuse to obey the directions of the conductor until they had first satisfied themselves that the directions-were authorized by the telegraphic orders; and when a. discretion was lodged in the conductor it would have-been their duty to refuse obedience unless they should approve his orders as within that discretion. It is scarcely necessary to say that such a rule would destroy the discipline essential to the proper management of' trains, and we find nothing in the record which requires that it be enforced in this case. "Whether Davies knew that No. 3 had not passed when the conductor ordered his train out onto the main line is not shown. It is probable, but not certain, that he would
II. The appellant complains of the fifth paragraph of the charge, to the jury, which is as follows: “5 You are, however, in this connection, to remember that, when a person suddenly finds himself exposed to great peril and danger, and is obliged to act upon the spur of the moment, it is not necessarily negligence if, under such circumstances, he did what he thought was for the best for his own safety, although what he then did may not be the right thing, or what he would have done in cooler moments and when he was free from excitement.” The ground of the complaint is that there is no evidence to justify it. It is said that the responsibility of Davies must be judged from what he did or failed to do when his train was ordered onto the main track, and that the instruction was not applicable to him as he was situated at that time. But it referred to his situation at the time of the collision. The engineer spoke to and struck him to warn him of the danger, and then jumped from the train, thus saving himself. Had Davies also jumped, he might have escaped injury; and the court correctly charged the jury in regard to his duty, and the weight to be given to his conduct under such circumstances.
III. The appellant contends that the amount of the verdict is excessive, and that the jury were not properly charged in regard to the measure of damages. We discover no error in the charge in that respect. The amount allowed was eight thousand dollars, and we
IY. "What we have said disposes of the controlling questions in the case. Some objections are urged by appellant which we have not mentioned in detail, but we have examined them all, and conclude that the record does not disclose any error prejudicial to the defendant. The judgment of the district court is AFFIRMED.