140 Iowa 33 | Iowa | 1908
— The plaintiff was the head bralteman on.. one of the defendant’s freight trains, and he was injured while assisting in switching at a gravel pit near its •main line. A spur track had been constructed from the
That said spur track had been improperly constructed, because defendant negligently laid and maintained two railroad ties at such place and in such proximity to each other, without properly filling the space between them and under them,, thus leaving a hole in such manner as to expose plaintiff to the danger of having his foot caught. . . . That said spur track was negligently constructed, for the reason that it was not properly surfaced or filled in between said ties. . . . That the engineer and employes in charge of the engine failed to obey the signal of the plaintiff to stop, and failed to stop the said engine and car prior to the time the plaintiff was caught. That the engineer and employes in charge of the engine failed to beep a lookout for the plaintiff. That the engineer and employes in charge of said engine proceeded to back said engine and car after the plaintiff had thrown his body outside of the rails of said track, and after the break beam had loosed his foot.
The plaintiff had been on the run in question for some time prior to the accident, and had frequently assisted in placing cars on this spur track, and had assisted in taking out cars of ballast on several occasions. On the day of the accident the train, consisting of nineteen or twenty cars, reached the switch from the north between six and seven o’clock in the evening. The second and third cars from the engine were empty ballast cars which were to be thrown down on the spur track to the gravel pit. The plaintiff and the other brakemian were to set out these two cars. They uncoupled -the third car from the engine from the balance of the train, and the plaintiff turned the switch and lined it up for the spur track; the other brakeman, Campbell, staying on the empty, cars to cut them off. The plaintiff gave the engineer a kick sign to shove them
In view of the undisputed evidence that it was the duty of the engineer to keep a constant lookout while switching, we think the instruction correct.
The instructions are also criticised because confusing and too long. They are rather long and somewhat complicated, but, on the whole, we think the’ jury was not misled by them.