82 Iowa 148 | Iowa | 1891
The following statement of the facts, with such as are hereinafter mentioned, will be sufficient to an understanding of the questions discussed. They appear without question except in two or three respects which will be mentioned. The plaintiff’s intestate, Prank Pieart, aged twenty-two, had been in the employ of the defendant as a switchman at its ' yards in Atlantic for about one year before his death, at a salary of forty dollars per month, and for several years prior thereto in other capacities. As such switch-man it was his duty to assist in placing cars into trains ready to be taken out on the road, and in moving cars from place to place in the yard, as might be necessary. Por this work an engine in charge of an engineer and fireman, with two switchmen, the four constituting the crew, was provided. This work was performed under the orders of Prank Cain, as yard-master, who gave directions as to what cars were to be moved, and where to, but did not direct as to the immediate details of their movement. It was the duty of the deceased, as switchman, to couple and uncouple cars to and from each other, and the engine, when necessary in switching, and to give signals to the engineer when to move and to stop the engine, which signals it was the duty of the engineer to obey. Up to within one week prior to February 20, 1885, defendant had furnished, for that work, a road engine, number 198, with run-boards bolted to the base,of the pilot or cow-catcher, the purpose of which was that the switchmen might step and stand thereon when the engine was in motion, and thereby be carried from point to point, and from which to make couplings when necessary. This engine became out of
I. After the verdict it was stipulated that appellants have five days in which to file a motion for judgment
II. In an instruction with respect to the duty of the deceased as to care in detaching the car and engine,
III. Of the several charges of negligence made against the defendant, the only one submitted to the
This brings us to inquire whether complaint was made to one having authority in such matters. The two conversations relied upon were with Cain, the yardmaster, under whose orders the deceased performed his duties as switchman. It appears that the yard-master had no authority to direct repairs on the engine, but, if an engine was furnished him lacking some appliances necessary for switching, it was his duty to report to the trainmaster, who would determine the advisability of
The testimony relied upon as showing a protest by, and a promise or assurance to, the deceased is, in substance, as follows: At the time the engines were changed, the deceased raised objection to working with the engine without foot-boards on. Shields, the engineer, said: “The engine would not be there over one week, and he did not like to have foot-boards put on his engine for so short a time; as we would have to take some of the boards from between the pilot bars, in order to put the boards on, and would also have to bore holes through the bottom of the pilot, and he preferred not to have that done, as he had the pilot all fixed up for winter.” “Cain said he would not bother to put the boards on at that time, as the engine would only be there a few days, and he would not bother with it.” Switchman Adams, who relates this conversation, also states that he and the deceased had taken the boards from engine 198, and expected to put them on 208, and did not do so because of the objections of the engineer, and the advice of Cain. On the morning of the day on which deceased was injured, he stated,, in the presence of Cain, that somebody had told him that the repairs had not commenced on the engine taken to Stpart; that he hated to work around that engine without running-boards ; and that he had a good mind to put one on himself; when Cain asked, “How would you do it?” and his answer was: “I would spike it on if there was
In contracting employment the defendant assumed to exercise ordinary care for the safety of the deceased, and he assumed all the ordinary dangers of the employment. If ordinary care required that the defendant provide an engine with running-boards, then it was negligence not to do so. If the deceased knew there were no run-boards on the engine, and continued in the employment without complaint, or if, having complained, he continued in the employment without assurances from which he had a right to believe that run-boards would be furnished, then he waived the negligence, and assumed the risks incident to the work without run-boards. If, upon complaint, he was given assurance from which he had a right to believe that run-boards would be furnished, and by such assurance was induced to and did continue in the service, then he did not waive the negligence, and the defendant assumed the hazards incident to the absence of run-boards. No particular form of words is required to constitute a complaint or assurance. If, by any acts or expressions, the deceased gave the proper agent of the defendant to know that he was unwilling to continue in the employment without running-boards on the engine, that was a sufficient complaint; and, if by any acts or expressions the agent gave the deceased reason to-believe that running-boards would be furnished, that was a sufficient assurance or promise. There was clearly no assurance or promise in these conversations that run-boards would be furnished so long as the engine-then in use should remain in that service, but the conversations did tend to show an assurance that an engine would be furnished for the work with run-boards at
IY. The defendant complains of the refusal to give the following instructions: “If you believe from
One of the important issues to be decided by the jury was whether the deceased was guilty of contributory negligence in attempting to detach the engine and car when and as he did. The presence or absence of opportunity to do the work at a different time or in a different way with greater safety was an important element of this inquiry. There is testimony tending to show that the engine and car were moved at the
Y. Exceptions were taken to other instructions given and to overruling the defendant’s motion to direct
It follows from the conclusions reached that the judgment of the district court must be reversed.