Gould v. Chicago, Burlington & Quincy R'y Co.

24 N.W. 227, 66 Iowa 590

• Court: Supreme Court of Iowa
• Decided: July 22, 1885
• Status: Published

Opinion

Beck, Ch. J.

1. railroads: gTeer:proxinegligence. ’ I. The intestate, at the time of his death, was the engineer in charge of an engine drawing a freight train between Burlington and Ottumwa. He was instructed to make the trip without stopping at any station unless signaled or specially directed. It appears that it was the duty of the conductor or brakeman of the rear end of the train, w'hen passing stations, to make signals to the engineers. The train having reached Leffler, and the engine and many cars having passed the station-house, the intestate, after making inquiry of the firemen in regard to the expected signal, which, it appears, was not given, went to the side of the engine usually occupied by the fireman, and leaned out of the “gangway,” looking back for the expected signal. He was almost instantly struck upon the head by a “ water- crane” or “ water-column,” causing an injury which soon resulted in death. The water-crane, or ■ the frame supporting it, was about two feet from the floor of the gangway upon which intestate was standing when he received the injury.

II. The circuit court gave to the jury the following instruction: “ (10) If you find from the evidence that it was the duty of the conductor to give, or cause to be given, a signal to the engineer about the time the car passed Leffler’s station, and that the conductor negligently failed to give, or have the usual signal given, then the defendants were guilty of negligence.” "VYe think the instruction ought not to have been given. The failure of the conductor to give the signal was undoubtedly negligence; but it is plain that it was not the proximate cause of the injury. Indeed, the failure to give the signal did not cause the intestate to expose himself to the danger of the water-crane by looking for the signal. He acted as he did for the purpose of discovering the signal, and, had it been given, he would, notwithstanding, have met with the accident. The failure to give the signal did not require him to expose himself to danger. It was his duty to look fpr it, whether it was given or was not given, and the result would have been alike in each case. It therefore cannot be said that the negligence of the conductor in failing to give the signal was the proximate cause, or one of the proximate causes, of the injury. But the instruction just quoted holds defendant liable for the negligence of the conductor which, to say the most of it, had but a remote influence in causing the accident.

2.-: dantmes: negiifecting. III. The court gave instructions in the following language: “Sixth. It is also the duty of the company to use reasonable and proper precautions to protect its employes from injury while engaged m the performance of their duties. Seventh. If you find from the evidence that the water-column was placed in such close proximity to the track as to be dangerous to the persons operating the trains, you will be justified in finding that defendants were guilty of negligence in the erection and location of the column. Eighth. On the other hand, if you find from the evidence that the crane was so located as to be reasonably safe for train-men operating trains in a reasonably safe and prudent manner, then defendants were not guilty of negligence in the location of the crane.”

The sixth and eighth of these instructions are correct, but, in our opinion, the seventh is erroneous and misleading. It is not true that a railroad company is to be regarded as negligent in erecting or maintaining contrivances or things few.' use in the operation of their roads, for the reason that they are “ dangerous to tlie persons operating the trains.” Indeed, the whole business of operating trains is “ dangerous.” It is full of perils to those employed therein. Because there is danger, it does not follow that the companies are negligent as to the things from which the danger springs. The instrction should have expressed the thought that if the crane was dangerous to persons operating trains in the exercise of ordinary care, the defendant was negligent in constructing it. It is possible that this thought may be discovered in reading the seventh and eighth instructions together. But it is clear to our minds that, taken together, they are misleading, and that the jury reached the conclusion, upon finding there was danger from the crane, that defendant was negligent, without inquiring whether the danger could have been avoided by the exercise on the part of the intestate of proper care.

3. practice courtfquestions in regard when not06: considered, IY. Counsel for defendant claim that the evidence shows that the intestate was negligent, and that no negligence upon the part of defendant is made to appear. They insist, too, that if negligence of defendant is . . .... ^own, B was waived by intestate’s remaining m the employment of defendant without complaint or protest. They also complain of certain rulings upon the admission of evidence. These questions ought not now to' be considered by us. They all pertain to the evidence submitted to the jury, which may not be the same at another trial. "We are not accustomed to express views as to the evidence when a cause is sent hack for a retrial upon errors in instructions, or for other errors committed in settling the law of the case by the court below. For the errors in the instructions pointed out, the judgment of the circuit court is

Beversed.