89 Iowa 420 | Iowa | 1893
The plaintiff’s claim, as set forth in her petition is substantially this: That she is .the administratrix of the estate of one Channing Lowe, deceased; that the defendant was, on and prior to November 14, 1891, operating a line of railroad through the town of Ashton, in this state, at which point it had a main line and certain switches and side tracks; that at that time and place it was frequently the custom and practice of the defendant, when its trains were behind time, and it desired to detach certain of its ears from those in use on the main line and place them on a' side track, to order, direct and require certain of its servants acting as brakemen to open one of the switches connecting with its main line, and then, while said cars and engine were in motion, to step upon its track between the'cars .to be detached, and uncouple them; that when the cars were being uncoupled it was then and there the duty as well as the custom and practice of the defendant and its servants controlling the movement of the engine and cars to move said train backward very slowly, and at a steady and regular rate of speed, and not to increase the rate of speed at which the cars were being moved, and not to “kick” the cars backward, until the servant of defendant had signaled the defendant’s servants in charge of the engine that he had performed the act of uncoupling the cars, and to “kick” the uncoupled cars backward onto the switch; that on or about November 14, 1891, the defendant employed Channing Lowe ás a brakeman, and employed other servants to care for, manage and control its trains and engines, and instructed Lowe to work under their direction, and to obey their orders, and so he undertook to do; that at Ashton, while in the employ of the defendant, and acting in the line of duty, as aforesaid, Lowe was directed and ordered to open and place the switch at the north end of the side track on the west side of the main line, and to uncouple from said train, while
The defendant admits its corporate capacity, and-that it was at the time stated operating its railway as alleged, and denies all other allegations. In a second count the defendant avers, that the killing of Lowe was not the result of any negligence on its part, or of its servants or employees, but was the result of, and occasioned by, the careless and negligent acts of the deceased. That the deceased was at the time of the injury directing the movement of the train, and said train was moved and controlled by his direction only, and in no other or different manner; that the deceased, with knowledge that the train was in motion, and of what was being done, and to be done, with the engine and cars, carelessly and negligently went in between the cars when they were in motion, and voluntarily placed himself in a dangerous place with full knowledge of the danger incurred, whereby he was injured. In a third count it is averred, that Lowe had for a long time prior to his death been in the employ of the defendant’s as a brakeman, and had full knowledge of the manner of doing
“The attention of switchmen and brakemen and all other employees of the company, whose duty it is to couple cars, is called to the following rule of the company:
“‘Rule 15. Great caremust.be exercised by all persons when coupling cars. * * *■ All persons entering into or remaining in the service of the company are warned that the business is hazardous, and that they must assume the ordinary risks attending it. Each employee is expected and required to look after, and be responsible for, his own safety, as ■ well as to exercise the utmost caution to avoid injury to his fellows, especially in the switching of cars and in all movements of trains. * * * Getting in between cars in motion to uncouple them, and all similar acts, are dangerous, and in violation of duty, and are strictly prohibited.' Employees are warned that if they commit them it will be at their own peril and risk.’ ”
The plaintiff denied the allegations in the third and fourth, counts of the answer, and, further replying, said that, notwithstanding the rules of the. defend
That railroad companies have the right to make and pi’omulgate proper and reasonable rules for the government of their employees in the transaction of the business intrusted to them is well settled, and it is likely there might be cases where they would be derelict in duty if they failed to establish such rules. Deeds v. Chi., R. I. & P. Railroad Co., 74 Iowa, 154; Cooper v. Central Railroad Co., 44 Iowa, 134, 138; O’Neill v. Keokuk & D. M. Railroad Co., 45 Iowa, 546, 547; Pittsburg, Ft. W. & Chi. Railroad Co. v. Powers, 74 Ill. 341, 344; Lockwood v. C. & N. Y. Railroad Co., 55 Wis. 50, 12 N. W. Rep. 401; Reed v. Bur., C. R. & N. Railroad Co., 72 Iowa, 166; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. Rep. 380; Sedgwick v. Illinois Cent. R’y Co., 73 Iowa, 158; Beach on Contributory Negligence, section 141. A rule prohibiting the coupling and, uncoupling of cars by going in between them while they are in motion is reasonable, and, if enforced, is calculated to protect the limbs and lives of those whose duty it is to perform the always dangerous work of coupling or uncoupling cars. But we can not doubt that such a rule may, by the consent of the parties, be waived or abrogated. Let it be conceded that by receiving a copy of the rules and entering the company's service the deceased became bound by contract, and under obligations to obey the rules given him, nevertheless the parties to the contract
There is a conflict in the cases, some of them holding that a usage or custom can not be shown as against a rule or contract like that under consideration; but we think it is clear that it is competent to show a usage or custom on the part of the employees of defendant at variance with, and in violation of, such a rule, when the defendant has, through its proper officers, knowledge of its violation, and their conduct shows that they acquiesced in such violation. The following authorities support this view: Northern Pacific Railroad Co. v. Nickels, 1. C. C. A. 625, 50 Fed. Rep. 718; Union Pacific Railway Co. v. Springsteen, 21 Pac. Rep. (Kan.) 774, 776; Prather v. Richmond & D. R. Railroad Co., 9 S. E. Rep. (Ga.) 530; Hissong v. Richmond & D. R. Railroad Co., 8 S. Rep. (Ala.) 776, 777; Bonner v. Beam, 15 S. W. Rep. (Tex. Sup.) 798, 799. Nor need it appear that the officers of the defendant, who are charged with the enforcement of its rules, had actual knowledge of the custom of the defendant’s employees as to violating the rule. Such notice or knowledge may be inferred from circumstances; it may be implied from the notoriety of the custom, whereby they are chargeable with notice. Lawson, Usages & Custom, section 21; Barry v. Hannibal & St. J. Railroad Co., 11 S. W. Rep. (Mo. Sup.) 309.
The evidence satisfi.es us that it was the custom of the defendant’s employees to couple and uncouple cars while in motion; that this practice was open and notorious, and had existed for such a length of time as that the defendant’s officers were chargeable with notice of it. It does not appear that those officers of the defendant whose duty it was to make rules, and who may, therefore, be presumed to be especially
III. The defendant asked one Maynard, who was the conductor of the train which killed the decedent, these questions:
a. master ana dlscf<Meautaemploye?: evidence. “Was it your intention, as conductor and manager of that train, that Mr. Lowe should uncouple those cars, an<^ go UP there to set out that car at/ the time when he did so?” “Now, for the purpose of setting out the car which y0U had instructions to leave at Ashton, and for clearing the main line for the passing of the passenger train, what movements of your train did you propose to have done to accomplish that purpose at the time?”
This evidence was inadmissible. Both questions called for an expression of the undisclosed intention of the conductor with reference to the setting out of the car. There is no pretense that the intention of the conductor in that respect was ever communicated by him to the decedent, or to anyone else, prior to the accident. Lowe could not be charged with the violation of an order conceived in the mind of his superior officer, but never communicated to him. The order to set out the car was in the form of a telegraphic message to the conductor. It was read by him to and in the presence of the brakemen. No express direction was given to Lowe to attend to setting out the car, but he
The claim of the appellant is, that the act of the decedent in going in between the moving cars to uncouple them was negligent as a matter of law. Now, going in between moving cars to couple or uncouple them is not necessarily a negligent act. Whether such an act constitutes negligence is to be determined from all the facts and circumstances surrounding its execution. Henry v. Sioux City & P. Railway Co., 75 Iowa, 84, 86; Beems v. C., R. I. & P. Railroad Co., 58 Iowa, 150.
The question of the decedent’s negligence was fairly submitted to the jury. They must have found that he was not guilty of any negligence which contributed to produce the accident, otherwise their verdict would have been for the defendant. Now, it appears that no direction was given to Lowe to set out the car at Ashton. The conductor had, before the train reached Ashton, received the message ordering the car set out, and had read it to the brakemen. When he read it he said to them, “We will set out that head stock car.”
From the evidence it does not appear that it was the special duty of any particular member of the train crew to place cars upon the side track. Sometimes that work was performed by the conductor and a brakeman, sometimes by two brakemen. Lowe, in connection with the engineer, undertook to carry out the order in accordance with the telegram read to the brakemen by the conductor. It is certain that in- so doing he was not a mere volunteer, but a servant of the defendant, performing an act- within the line of his employment and duty. He might have uncoupled the cars before he threw the switch, or after they had passed upon the side track, and in either case the cars would not have been moving; ,but the evidence shows that that was not the usual way of doing. He proceeded in the manner usual and customary with the defendant’s employees. It appears also that to have uncoupled before throwing the switch, or after the cars had passed upon the side track, would have required more time than to uncouple while the cars were in motion. The evidence shows that when Lowe passed in between the cars to uncouple
In view of these and other facts which might be stated, it was for the jury to say whether Lowe was negligent in attempting to uncouple the cars by going in between them while they were moving. They have said that he was not guilty of negligence in so doing, and we'think they were warranted in so finding, under all the facts and circumstances in evidence. The question of Lowe’s negligence was one of fact to be determined by the jury. Whitsett v. C., R. I. & P. R’y Co., 67 Iowa, 150, 158; Tabler v. Hannibal & St. J. R’y Co., 93 Mo. 79, 5 S. W. Rep. 810; Baldwin v. St. L., K. & N. W. R’y Co., 72 Iowa, 45.
“Well, as we were walking along, as I said, he overtook me going up, and I didn’t know at that time, that he was the engineer, until we spoke to each other, and I asked him if the man was killed, and he says ‘he was.’ And I says,‘How did it happen!’ He says to me: ‘I was looking out of the cab window, the east cab window, and the fireman was looking on the west side,- and he said the man was on the west side.’ He says to the fireman, ‘What is he saying!’ and he answered him, he said, ‘He is not saying anything.’ At the same time he held up his hand and made a motion that way, holding the hand up and shaking it sidewise. I didn’t know what it meant. ‘I don’t know what he says,’ he said. ‘I think he wants a little kick; give him a little kick!’ and he says, ‘I gave it to him.’ Those words he used exactly. Question. Who made the gesture that you refer to! Answer. The engineer, as I supposed he was the engineer. I took it by that, from, what he said. ’ ’
These statements were made by the engineer to the witness immediately after the accident happened, and prior to the taking of Lowe’s body out from under the train. From- the evidence it is clear that the jury were warranted in finding the defendant’s negligence was established. The train was under Lowe’s orders when the car was being set out. The fireman knew that Lowe was in between the cars. He knew he had given no order to increase the speed of the train, and recklessly, and without any warning, and without regard to Lowe’s safety, the cars were kicked and the speed increased. It was an act of gross negligence, uncalled for, and without justification. Whether this act was the cause of Lowe’s death is a question, we
VI. It is urged that the damages are excessive, and not warranted by the evidence. The verdict was for five thousand dollars. The court instructed the jury as follows:
' death: meas-ages0f dam’ “Paragraph 7. If you find for the plaintiff, then you will determine from all of the evidence before you what amount you will allow her as damages resulting to the estate of the deceased , . . reason of his death; and m determining what amount you will so allow, you should take into consideration the age of the deceased, his occupation, the wages he was receiving, the condition of his health, his ability, if any, to earn money, and all these, in connection with all of the evidence before you, and determine therefrom the probable pecuniary loss to the estate of the deceased, caused by his death, and allow the plaintiff such sum, and such only, as will compensate the estate for such loss.”
The instruction is not objectionable, nor was it error to refuse the one asked by the defendant. The instruction asked lays down the doctrine that, to determine the loss the decedent’s estate has sustained, the jury must ascertain from the evidence the amount he ‘ ‘would accumulate and have over and above his liabilities at his death, if he had lived the allotted time, as shown by the evidence to be his expectancy of life, and then allow such a sum as, placed at legal interest for that time, would produce a like sum.”
The judgment below is affirmed.