181 Iowa 845 | Iowa | 1917
As to the alleged accident, the plaintiff testified as follows :
“I remember some sort of an accident happened down the line there after we left Memphis, something like a mile. We were going doAvn hill. I could not say whether we were just rounding the curve at that time or not. The train I Avas on usually takes water down there. We had got to the water tank. The train had attained a speed of something like 20 to 25 miles per hour. I was , setting out cars on the wheel report and entering other cars that were picked up. I had not finished that work yet. I was standing up, with the train book in one hand, and setting them out just as I would do on any other trip. I had book and pencil in my hand. * * * I was there booking those cars and filling out the cars, and all at once there was an aAvful shock that threw me, — what I hit against I could not say, — and that is the last I remember until I came to at home. I have been in the railroad service for about seven years, as brakeman and conductor, — all in the freight sendee; always working for the C. B. & Q. * * * A.*847 One of the most violent shocks I ever received in my working capacity while on the road. * * * A. This was the most violent shock I ever received. I was thrown to the floor towards the engine. I do not remember anything at all until after I was thrown until along that night. Q. Now, basing your answer and opinion and your own experience of seven years in the freight service, — were you then so familiar with the division between Centerville and Keokuk at that time? A. Yes. Q. What might have caused this shock, if you say that you know ? A. It might have been caused by the engineer shutting off the throttle with the spring behind the draw-bar, which, when shut off, would force the front end to stop and run the rear end all together with a terrific shock. It may have been caused by his allowing his air to go into emergency all at once. 'There wasn’t any warning given me that I know of at the sudden jerking of the train, or stopping of it. * * * I do not know of any reason or necessity for train being stopped that suddenly. * * * It is about a mile from the Memphis station to the water tank. I was away,from this station when I felt the shock, in the neighborhood of a mile. The engine was supposed to stop there for water, and I knew that. They don’t whistle for the water tank. I have traveled over the road a great many times as freight conductor.”
There was no other affirmative testimony pertaining to the accident than the foregoing. That is to say, though other members of the train crew testified on the subject, they all denied that there was any such accident, and denied that the plaintiff’s injuries were caused in the manner described by him. This conflict of the evidence does not concern us on this appeal, except that it confines the plaintiff’s proof to the very narrow ground covered by his own evidence as a witness, without the aid of any additional facts established by other witnesses. The order ap
Turning, then, to the case before us, what was the accident which resulted in the plaintiff’s injury ? It was a sudden jerking, to an unusual degree, of the caboose of a freight train. What were the circumstances of this unusual jerking? In a sense, there were no circumstances except the fact of the jerking, unless we treat as a circumstance the fact that the train was about to stop at the water tank:
The appellee places special reliance upon Douda v. Chicago, R. I. & P. R. Co., 141 Iowa 82; Texas & Pac. R. Co. v. Behymer, 189 U. S. 468; Texas & Pac. R. Co. v. Putnam, 57 C. C. A. 58. In all these cited cases, the injured party was known to be temporarily in a position of danger. In the Douda case, he was under the engine. No movement of the engine was possible without injury to him. In the second case mentioned, the injured party was on the top of an ice-covered car, and was thrown therefrom. In the third case, he was on the draw-bar, and was thrown therefrom. The negligence in these cases was predicated to a large extent upon the special duty owed to the employee temporarily in his position of danger. That element is entirely absent in the case before us. We think, therefore, that it