Hamilton v. Chicago, Rock Island & Pacific Railway Co.

93 Iowa 46 | Iowa | 1894

Kinne, J.

Counsel argue at length the question as to whether the plaintiff in this case is within the protection of Code, Section 1307. In our judgment, a determination of that question is not important, as the injury for which recovery is sought was wholly accidental, The evidence fails to show any negligence on 1 part of the defendant. It is therefore not mate-rial to inquire as to the plaintiff’s negligence. The charges of negligence, in brief, are: In starting or ordering the car started; in using a car defectively constructed. Without attempting to set out the evidence, we may state the substance of it It is difficult to describe the hand-car in question, and the manner of its construction, so that the manner in which the accident happened may be understood. Plaintiff received the injury to his hand and arm while attempting to put his mittens into- a tool box. It appears that the car was constructed so that boards were nailed at the side of the frame supporting and inclosing the lever machinery, about eight inches in height, leaving openings at the sides; and a board was nailed in front of the lever frame, leaving just room enough for the working of the machinery which operated the lever. This box, so made, was used by the section men as a place to put tools which were used by them on the road in their work. While the space in front was. only large enough for the working of the machinery, the space at the side was quite large, and there was no danger attending the depositing of articles in the box through this side opening. Plaintiff and the other section men had finished their days work. Most of the tools had been placed upon the car. One other employe besides plaintiff was standing upon the car, and this man was facing plaintiff. The other men stood upon the ground near the car, and the foreman had one foot upon the car, being in the act of getting upon the car when the accident happened. After stepping upon the car, plaintiff took off his mittens, intending to• put them in the tool box, and,' instead of putting them in at the side, he put his hand in below the cog or knuckle and other ironwork which works the lever, and, while his hand was in there, the other man on the car started it. The movement of the car caused the lever to move, and the knuckle of the lever to come forward, catching plaintiff’s hand between it and the board which ran up in front of tjie lever frame, thereby inflicting a painful and serious injury to his hand and arm. The evidence, as we view it, shows without conflict that the section foreman gave no directions at all as to moving the car, and that he did not know of the situation of plaintiff’s hand at the time it was injured. So, without conflict, it appears that neither the man upon the car nor any of his associates who were standing upon the ground knew of plailntiff’s peril. Plaintiff himself testifies that he supposes that Coleman, the man on the car, did not see where plaintiff’s hand was at the time he (Cole-riian) moved the car, and there is no evidence which can be said to tend to show that any of the men either saw that plaintiff’s hand was in a place of peril prior to the injury, or that there was anything in the circumstances surrounding the injury which should be held "to " have caused any of the parties to have anticipated that plaintiff’s hand was or might he in a place by reason of which it would be dangerous to move the' car. The car was started in the usual way. The employes were through with their work, and all must have expected that the car would soon be started. It seems to have been one of those unfortunate and not to foe anticipated accidents, for which defendant is not responsible. There is, we think, no evidence whatever of any negligence on part of the defendant in causing or permitting the car to be moved under the circumstances.

2 It is, we think, equally clear that the charged negligent construction of the car was not established. It was shown that these hand-cars were made in different ways, and that different makes were used on some of the railroads. The car seems to hare been constructed as were all others of a like make. The evidence on this point was not of such a character as to warrant the conclusion that the car was in any wise defective in its construction.

No negligence having been shown on part of the defendant, there can be no recovery. The District Court properly directed a verdict for the defendant — ■ Affirmed.