72 Iowa 709 | Iowa | 1887
The train on which plaintiff was employed was used for hauling sand and gravel from a pit, and distributing the same along the main track of defendant’s road for ballast. At the time of the accident, the .train was at the pit, being-loaded. A quantity of sand had fallen upon the track in front of the engine, and plaintiff and one or two other employes were directed by the foreman to remove it. Before they had finished the work of removing it, however, the engine was put in motion, and started forward. On one side of the track there was a bank of sand about eight feet high. The space between this bank and the sides of the cars was about two feet wide. Plaintiff, in getting out of the way of the engine, stepped into this space. After the engine and one or two cars had passed, a quantity of sand fell from the bank, striking and knocking him against the moving cars. The wheels of one of the cars struck or passed over one of his legs, fracturing the bone in two places. Plaintiff' seeks to recover for the injury, on the ground that it was occasioned,
II. Counsel also asked the court to instruct the jury that, as the immediate and direct cause of the injury was the falling of the sand from the bank, and this was not the effect or consequence of the omission of the signal before the train was started, plaintiff could not recover. It is very clear that, unless it can be said that the injury was the natural and proximate consequence of the negligence complained of, plaintiff' is without remedy. The question whether the relation of cause and effect existed between the alleged negligent act and the injury was not submitted to the jury. 'We do not say that a case might not arise upon a somewhat similar state of facts in which it could be said that the injury was the consequence of the omission complained of. If the plaintiff had been working upon a bridge or culvert, and the locomotive had been suddenly put in motion without any signal having been given, and he had been compelled to jump from the bridge to avoid being run over by the engine, and had sustained an injury, it could very properly be said, perhaps, that the injury was the natural aud proximate consequence of the act of starting the engine without having given the signal. In that case, the immediate cause of the injury would be the act of the party in jumping from, the bridge ; but, as lie was compelled to do that by the act of the engineer'in running the engine upon him, without first giving him warning and an opportunity to get to a place of safety, it would be an immediate consequence of that act. The injury would be a result naturally to anticipated from the act. While it may notl be wise to attempt to lay down any general rule on the subject, we think it may safely be said that, whenever one person is compelled by the act or
Upon the state of the proof when the parties rested, plaintiff had not made out a case, and the court should have given the instruction asked
Peveksed.