83 Iowa 105 | Iowa | 1891
“That said refrigerator car on which plaintiff was so riding was so defectively constructed in its trucks and running gear that it would not turn a curve on the defendant’s said railroad tracks, and when at or about the point above mentioned, and being so removed, said car, on account of said defective construction, jumped the track, and became derailed, whereby plaintiff was thrown from the top of said car to the ground with great force and violence, inflicting upon plaintiff serious and permanent injuries,” etc. “That said injury to plaintiff was caused wholly by the defendant’s negligently using and permitting to be used said car so defectively constructed, and through no fault of plaintiff, by reason of all which plaintiff has been damaged to the sum of five thousand dollars, no part of which has been paid.”
After verdict, the defendant moved in arrest of judgment as follows:
“First. As grounds in arrest of judgment the defendant says that the petition in this case is defective and does not show a cause of action, in that it does not state that the defect in the construction of the running gear and trucks of the car from which the plaintiff is alleged to have fallen was known to the defendant, or might have been known to the defendant by the exercise of ordinary care. Second: . The petition does not allege that the defendant had knowledge or notice of the negligence complained of, either actual or constructive.”
A. motion in arrest of judgment is available only when “the facts stated by the petition do not entitle the plaintiff to any relief whatever.” Code, sec. 2650. A correct test of the sufficiency of the petition to entitle the plaintiff to any relief is to admit the facts
“I looked it all over carefully and particularly. I examined the trucks and running gear. I looked at the wheels, and looked at the truck, and all over it, to see that the bolts were all right, and the drawheads,. everything that was in view. * * * The next morning I saw it, — the fifteenth. She was sitting on the sidetrack there, by the engine-house, in the-yard. It was brought back to the yard. I looked it over, and found the side bearing gone on the-bolster. I jacked it up, so I could see the center plates. Eaised the car up off the track, so I could see the center pin. I did it to see if there was anything wrong with the center pin, — whether there was anything in there, — and I always do; and another thing was to get my side bearing on, — to get my bolts in.- I carefully examined these center plates, and the various-parts of these trucks, and put my hand in to see if there was any dirt or stones or pieces.qf iron. These center plates were in plain view after the car was jacked up, and I looked at them. There was nothing the least the matter of them. I examined both trucks and center-plates. I didn’t jack up the other end because it worked all right. The one end that was skewed around was the one that I examined, where the little piece of iron was off the car. Nothing wrong with the truck. Nothing wrong with the running gear, except the loss of this little piece. I tried the wheels. G-auged the-wheels. They were all in perfect order. The gauge is a stick that we have to try wheels with, the same gauge that is used on the tracks. The car had never been*110 there before for repairs. I examined it before. I should judge about a month before. I found it in perfect order, as far as I could see. I made a perfect examination of it at that time. There was nothing the •matter of the running gear or trucks that I could discover.
Cross-examination: I am the car-repairer. I have never had any other experience with any other of these refrigerator cars in Sioux City only in the draw-bar line, or something of that sort. Q. Didn’t you receive orders to send some of them to Waterloo on account of their not keeping track? A. That was afterwards. I examined the car in the yard,' and it was in perfect good condition, as far as I could see. I considered it in first-class. It was in perfect good condition the day before this accident, and it was in perfect good condition the day afterwards. I replaced a side casting. That was all that was wrong about that car, as far as I could see; that was all there was wrong. I jacked this car up in the yard after the accident. Didn’t before the accident. I had no occasion to.”
Mr. Bryant, foreman of the engine-house, also examined the car with Mr. Swift after the accident, and testifies that there was not anything to indicate that it was not in perfect condition. The trucks used with this car are in general use in Illinois, Wisconsin, Iowa, Minnesota, Nebraska and Missouri, and are used by many of the leading railways of the country acceptably. The record is in fact an affirmative showing in favor of that make of cars. It is a significant fact in this case, and of quite controlling importance, that no particular defect has ever been found in the car in question. In this respect this case differs from the generality of this class of cases before us. G-enerally the defect or cause of the accident is known at the time of the trial, — as a defective coupling or hand-piece, a broken axle or wheel, some particular fact to which the
Other questions presented it is not important to consider, and the judgment is eeveesed.