43 Iowa 109 | Iowa | 1876
The following are the conceded facts in the case: When the train came in from the south, it pulled up north of the switch, and backed down on the switch or side track, and unloaded some freight at the station, which is between the main track and switch. An order was given by the conductor to set out a certain Red tine car. The engineer was not then on the engine, and the fireman moved the train up north of the switch, on the main line, and the plaintiff cut off the part of the train in the rear of the Red Line car which was to be left, and the cars thus cut off backed down on the main track. The plaintiff then went between the Red Line car and the car next north of it, and pulled the pin, and laid it on the bumper of the Red Line car. After it was thus uncoupled and moving towards the switch, there being an opening between it and the train, the pin fell off the bumper
If the plaintiff gave signal to the fireman to stop, his duties with relation to the movement of the train were such, being the proper person to give signals, that he was warranted in believing that his signal would be obeyed, and if in that belief, and seeing that it had checked speed, he attempted to take the pin from the track, and at the time there was no danger to be reasonably apprehended, he was guilty of no contributory negligence. And if the fireman disregarded the signal to stop, but increased the speed about the time plaintiff attempted to get the pin, he was guilty of negligence. The fireman testifies, that after the pin was pulled, and while the train was backing, the plaintiff made a motion with his arm which he understood to be a signal to back. This the plaintiff explicitly denies. As to the question of negligence of the fireman, and contributory negligence. of plaintiff, the jury were warranted in finding as they did. We have not given all the testimony, but a careful reading has satisfied us that this court, under the rule so often given, ought not to interfere with the verdict as being against the evidence.
2_;J_. mstmction. “ It devolved on the plaintiff to have proved, in order to maintain his action, that the accident by which he was injured was caused by the negligence' of his co-employes; and that he, by his own carelessness, did not contribute thereto.” It is claimed that this directs the jury that plaintiff can only be guilty of contributory negligence when careless. Carelessness and negligence are synonymous, and we fail to comprehend the force of the objection made by defendant’s counsel. If one contribute to his injury without negligence, he does not come within the rule of contributory negligence. Negligence must exist to fill the condition of the rule.
'This modification was warranted by evidence in the case. The defendant insists that the fact of the plaintiff going on the track when the train was in motion, and in close proximity, is of itself contributory negligence. It undoubtedly would
The instructions taken together contain the law applicable to the rights of the parties, their duties and obligations, as laid down by this court in numerous cases, and which in this class of cases is now so well settled as to admit of but little discussion or liability to mistake.
Affirmed.