165 Iowa 1 | Iowa | 1913
I. This is an action for the death of Elmer A. Little, a brákeman upon a freight train operated by defendant. This case was first tried in May, 1909, and a verdict directed for defendant. Upon appeal the case was reversed and remanded for a new trial, the decision being reported in 149 Iowa, 711. This appeal involves the questions arising upon the retrial.
The petition alleges, in substance, that on the evening of October 10,1907, at Oxford, Iowa, the decedent, Little, was in performance of the duties of his employment as a brakeman ; that it was the duty of the defendant to block its guard rails, but that the defendant at that point negligently omitted to properly and sufficiently guard or block the space between the guard rail and main rail, so that said space became a dangerous trap to brakemen and other employees, in consequence of which negligence, without contributory negligence on the part of the decedent, his foot became caught and held fast in said space, and he was killed. The original petition also contained an allegation of negligence as to a pile of boards left negligently near the track, which was in some manner instrumental to the injury, but this ground of negligence was not submitted to the jury. The answer of defendant was a general denial, and by a separate division that defendant did
As to the additional question whether there was negligence of the defendant in permitting unblocked frogs in its yards, it was held in the former opinion that the facts were such as to justify its submission to the jury. On the retrial the defendant, this appellant, introduced much testimony, not presented at the first trial, tending to show that among experienced railroad men and construction engineers there was, at the time of the happening of this accident and is yet, an honest difference of opinion as to which is the safer, the blocked or the unblocked frog, and that under such evidence it could not be found that the defendant was negligent in permitting its frogs to be unblocked. Witnesses testified as to the custom or practice of about one hundred different railroads throughout the United States as to blocking frogs. The testimony disclosed that at or about the time material to this inquiry the many different witnesses examined upon this subject were familiar with the use of blocks for guard rails as a railroad appliance; that they knew of guard rails being blocked by some roads and unblocked by others in 1907 and before that time. Some of the witnesses testified that the unblocked frog was safer; others that the blocked frog might reduce the danger to trainmen; that if guard rails could be well blocked and kept well blocked they might be of some assistance; and another that “in my experience it is very
III. We accept the statement of the proposition relied upon by counsel in argument as fairly presenting the precise question raised, and which was not, on the former appeal, considered in the light of proof now in the record: “Where the undisputed evidence shows that railroad companies at the time of this aeeident used both the blocked and unblocked frog, some using one and some the other, and that it was questionable which was the safest or most suitable for the business of the roads, then the use of the unblocked frog is hot negligence. Where it is shown that it is questionable which is the safest or most suitable, or where it is shown that it was honestly considered by railway managements to be questionable which was the safest or most suitable at the time of the accident, then the adoption of either method cannot be said to be negligence.” The question presented is one in which there is a want of harmony in the authorities, and which in the form stated has not been the subject of decision by this court, although, as we shall later note, what we consider to be the controlling principle, as bearing upon the question of duty and negligence, and proof of such, has had frequent announcement by us. It cannot be questioned but the cases relied upon
A more thorough examination of the record, aided by a more complete analysis thereof by counsel than we were favored with on the former hearing, has disclosed that there were wide differences of opinion between railway companies and their skilled managers with respect to the relative safety to their servants and to the public of the blocked and unblocked guard rails; that a very large number — perhaps a majority — of the principal railway systems of the country continue the use of unblocked rails, and that in some instances the managers of the companies have used the blocked and unblocked alternately, because of an inability to satisfy their own minds which, upon the whole, 'is the safer and more prudent course to pursue. . . . Upon this state of the record, can it be properly said that a railroad company is negligent because of using or of failing to use the block? We think not. It is a case not analogous to the use of defective machinery, or of omitting the use of a device generally approved, and obviously adapted to prevent or lessen a known and specific danger. The rule of law is that in such cases the employer must exercise such care and skill as under the circumstances reasonable and ordinary prudence requires to be used. ... It may be said generally that a man cannot be held responsible in damages for the consequences of an error in judgment, carefully formed after an intelligent survey of all the elements entering into the problem which he is called upon to solve.
The question was also considered in Southern Pacific Ry. v. Seley, 152 U. S. 145 (14 Sup. Ct. 530, 38 L. Ed. 391). In that ease the decedent had lost his life because of an unblocked frog, and action for damages was brought by his administratrix in the then territory of Utah. The trial court refused certain instructions, and refused to direct a* verdict on the motion of the defendant. Upon submission to the jury a verdict was rendered in favor of the plaintiff, which was affirmed by the Supreme Court of the territory. The case was taken on error to the Supreme Court of the United States. The evidence tended to show that the unblocked frog was then generally used in the West, and that it was better than the blocked frog. In the trial court the defendant had asked an instruction to the effect that if “the jury found from the evidence that railroad companies used both the blocked and the unblocked frog, and that it is questionable which is the safest or most suitable for the business of the roads, then the use of the unblocked frog is not negligence. ’ ’ This instruction was refused, and upon the final appeal the court held in the cited ease that it should have been given. That court also held that, in view of the facts and the authorities cited by it in its opinion, the defendant was entitled, not only to the instruction prayed for, but that upon the whole evidence the prayer for a peremptory instruction in the defendant’s favor ought to have been granted.
Among the cases cited by the appellant in support of its position are Reese v. Hershey, 163 Pa. 253 (29 Atl. 907, 43 Am. St. Rep. 795); Dooner v. Del. & Hudson Canal Co., 171 Pa. 581 (33 Atl. 415); Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31 (36 N. E. 813); Louisville R. R. Co. v. Hall, 91 Ala. 112 (8 South. 371, 24 Am. St. Rep. 863).
In many eases it is held that when the question is an engineering problem, entering into the construction, to resolve
There is another line of authorities which holds to the rule that under such conditions it is yet a question for the jury to determine whether, in adopting a particular method of equipment or construction there was the exercise of ordinary care; but recognizing that the adoption of one method over another, and as to which there may have been difference of opinion among experts, while tending to show ordinary care, is not conclusive on that question. Or, stated differently, when such question arises, and reasonable minds might differ as to whether there was the exercise of ordinary care in adopting the plan as safer to the employees, it is a question for the jury. Of course, if but one conclusion could be reached, the duty of determining the question would be in the court. Such eases are based upon the rule that due regard must be had for the safety of the employees, and while from the fact of accident or injury under particular circumstances negligence may not be inferred, if the cause is such that there may be reasonable differences of opinion as to whether it was or was not negligent, the jury must decide it.
Upon these questions this court has frequently passed; but before referring to our previous decisions, we would notice the expressions of the courts of some other states and of law writers, which are in full support of what we conclude to be the rule of our own state. In discussing the question in his work on Master and Servant, volume 3, section 947, Mr. Labatt recognizes a division in judicial opinion, as regards it, and one group of states as holding to the rule that “the master’s conformity to general usage is regarded merely ás evidence tending, more or less strongly, to exculpate him from the danger of negligence,” and cites as states holding to -that doctrine, Alabama, California, Colorado, Illinois, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Missouri, New York, South Carolina, Texas, Vermont, "Washington, and Wis
The principle upon which a large number of decisions are based, some' of which emanate from the courts whose rulings are reviewed in the preceding sections, is that embodied in the remark of Willes, J., with reference to the plea put forward by the defendant in a well-known case, that ‘no usage could establish that what is in fact unnecessarily dangerous was in law reasonably safe as against persons towards whom there was a duty to be reasonably careful.’ That is to say, the position is taken that custom furnishes no excuse, if the custom itself is negligent. In this point of view, the master’s conformity to general usage is regarded merely as evidence tending more or less strongly to exculpate him from the charge of negligence. After it has been shown that the defendant had complied with the usage of other employers in the same line of business, the question whether the particular instrumentality or method was reasonably safe still remains open, and, unless it is decided in the master’s favor, he must indemnify the servant.
In Smith v. R. R. Co., 69 Mo. 32 (33 Am. Rep. 484), action was brought by a brakeman for injuries resulting from having his foot caught in a guard rail. An instruction was asked which embodied the claim relied upon by appellant; that is, if the style of track and guard rail were in general or universal use, and that the same were placed as located in the usual or approved methods in use by the best constructed roads, then there could be no recovery. The instruction was held by the appellate court to be erroneous.
Huhn v. Mo. Pacific R. R. Co., 92 Mo. 440 (4 S. W. 937), presented a question quite similar to the one now being considered. Plaintiff’s intestate, was killed while engaged in drawing a coupling between ears which were in motion. His foot caught between the guard rail and the track, with the result that he was held and crushed by the moving
It is true that the question of negligence cannot be resolved alone upon the fact as to how many roads do or do not block the guard rails; nor can it be said the company was guilty of negligence simply because the blocks made it safer for the employees. These are facts, however, to receive a proper consideration from the jury. It may be that the use of blocks would be imprudent on the main line, and quite essential in the ear yards, where the employees are constantly engaged in coupling and uncoupling cars; for, as the danger increases, the care should increase. The guard rail in this ease was on the side track leading to the main track. The defendant-was not called upon to discard the existing rails. The defendant seems to have recognized the propriety of using the blocks in some of its car yards. There is certainly evidence that it does use them in one. They are used by some other roads; and there can be no doubt but that the evidence here, in no way qontradicted, shows that they add much to the safety of the employees. Where the facts are either disputed, or different inferences may be fairly drawn from the undisputed facts, the question of negligence should be submitted to the jury.
In Martin v. R. R. Co., 94 Cal. 326 (29 Pac. 645), a brakeman had been killed when engaged in coupling cars. The special negligence charged was in using particular couplings, of different types, upon the two cars, couplings which when fitted to one of their kind worked properly, but when applied to another type, it is claimed, were dangerous. While that ease differs from the present one in the facts, there arose in it the question we now consider, and upon which the court said: “The instruction asked by appellant that if this character of coupling was in general use among railroad companies, then
These cases recognize the principle which has governed the decisions of this court in many cases, and which has late expression in Kirby v. C., R. I. & P. Ry. Co., 150 Iowa, 594. After having discussed the question and referred to previous eases decided by this court, the conclusion was announced as follows:
In accordance with the views thus expressed, evidence of the general use of locomotives in design and plan such as the one in question by reasonably careful and prudent railways was properly received as bearing on the question of defendant’s negligence in using such style of locomotive; but such evidence, although uneontradicted, would not justify the giving of an instruction to the effect that, if locomotives such as that in question were in general use on reasonably careful and prudent railways, then the verdict must be for defendant, for railways which are in general well managed in respect to prudence and care in the selection of machinery may nevertheless in particular instances be negligent, and it cannot be said that the concurrence in such negligence by many well managed railroads changes the character of the act itself.
In others of our cases the same rule has been stated, where custom or usage as to the manner of doing a particular act, or of construction, was presented; but in all instances it has been left as a question of fact for the jury to determine whether, even though such method was followed, in so doing the defendant acted with reasonable care and prudence, and evidence to so show was competent. Austin v. C., R. I. & P. Ry. Co., 93 Iowa, 238; Metzgar v. C., M. & St. P., 76 Iowa, 387; Wilder v. Cereal Co., 134 Iowa, 451; Hall v. Ry. Co., 140 Iowa, 32.
Holding to the spirit of our previous decisions, not from
IV. The defendant requested the trial court to give to the jury instructions Nos. 1, 2, 2y2, and 3, which request was refused and because of such error is charged. The first two related to and were based upon the proposition stated by counsel as the rule of law which should control. From the conclusions reached by us, as given above, it follows that we find no error in such refusal.
The judgment of the trial court is — Affirmed.
