73 Iowa 66 | Iowa | 1887
On the 30th of August, 1884, the plaintiff’s intestate, Dennis Haugh, was killed while attempting to couple to the defendant’s train a car loaded with lumber. The accident occurred by reason of the fact that the lumber was so loaded as to project too far forward. Haugh approached the loaded car riding upon the foot-board fixed across the rear end of the tender, and was caught between the projecting lumber and the tender. He was himself controlling the movement of the engine, through signals to the engineer, and no fault is chargeable to the latter. The plaintiff contends that the company was responsible for the improper way in which the lumber was loaded; and the company contends that the deceased was negligent in not discovering that the lumber was improperly loaded, and in attempting to make the coupling in the position in which he was. The loaded car stood upon a side track in the city of Davenport. It had
Several questions are discussed, but if a certain instruction given by the court is correct, it appears to us that there is no error in the other matters complained of. That instruction is in these words: “No question is made under the evidence but that the car in question was loaded by Neater & Son at their own yard, said car being sent there for that purpose in accordance with a common custom, which custom also required the defendant to send for the car and put it into the train when it was loaded. From ■ the standpoint of the law, it makes no difference under the circumstances whether it was in fact loaded by men in the employ or pay of the defendant or not; it was essentially the act of the defendant, and stands in precisely the same situation as if actually loaded by men in the pay of the defendant.” The giving of this instruction is assigned as error. The instruction proceeds upon the theory that the company owed the deceased the duty of seeing that the car was properly loaded, so far as the safety of the deceased was concerned, and that it must be deemed to have adopted the acts of Neater & Son in the loading of the car. The company denies that it owed the deceased such duty, and denies that it was responsible for the manner in which the car was loaded. It admits that no car loaded as this was should be taken into the train, but its position is that it can act only through employes, and that the deceased was the sole employe charged with the duty of discovering whether the car was properly loaded or not.
A large amount of evidence was introduced tending to show that the deceased was by virtue of his employment and mode of doing business charged with some duty in respect
We arrive at this conclusion partly from the character of the order itself. It was an unqualified order to bring out the car. It carried upon its face the implication that the company considered the car ready to be brought out. Its unqualified character is not consistent with the idea that the deceased was charged with the primary and sole duty of
Affirmed.