Thoman v. Chicago & Northwestern Railway Co.

Given, J. [197] I. Appellant presents among other grounds for reversal, the claim that, by the uncontroverted evidence, the plaintiff is shown to have been guilty of such contributory negligence as defeats his right to recover. There is no material conflict in the evidence as to how the accident occurred, and the facts shown are substantially as follows: Plaintiff was in the employ of the defendant as a switchman in its yards at Tama City, performing his duties under the direction of Mr. Montgomery, the yardmaster. On the day the plaintiff was injured, he, in obedience to the order of Mr. Montgomery, went with the switching crew, of which he was one, in charge of a train composed of the switch engine, a coal car loaded with rails, and a box car loaded with ties, north from Tama City, to distribute rails and ties at points along the line, to be used by the sectionmen in repairing the track. The train was in charge of Mr. Montgomery, as conductor, and, on arriving at the place of the accident, was stopped; and three-sectionmen, under the direction of Mr. Gadbury, section foreman, commenced to rapidly throw out ties through the east door in the middle of the box car. Gadbury stood on the ground on the north side of the door, to see that the ties sufficiently cleared the track. Plaintiff’s duties on the train were those of hind brakeman, his place being [198] in the rear end of the box car. When the train stopped, Montgomery passed from the engine along the east side of the train between the unloaded ties and the fence to the rear, and, on reaching the box car, called the plaintiff, and told him to go forward, get a red flag, and flag the train, and to hurry. Plaintiff states that when he came around the corner of the box car he saw they were throwing out ties, and, before starting, looked over toward the fence, saw ties thrown, and thought it was safer to go close to the car than twenty feet away; started to go along between the ties on the ground and the ear, about an arm’s length from the car on the ground, two feet below the track. That after he started, he stopped until one tie was thrown out. “Then Montgomery said, ‘Now hurry ahead.’ I attempted to obey. After he said, ‘Hurry up,’ I took eight or ten steps before I got hit. * * * I did not think about asking G-adbury to have them stop a minute until I got by. I did not have any time to tell him.” Gadbury testifies that he heard Montgomery tell plaintiff to “go forward, and flag the train, and to hurry up;” that he was not thinking of anybody getting in the way; that he was noticing the men at work, and did not notice which way plaintiff was going, until he was in front of the door; that he called to him, but too late. He says: “I think Montgomery told him to go around, and told him to go ahead and flag, and then told him to hurry. * * * He told him to hurry just a few seconds before he was struck. A few seconds before that a tie had been thrown out. It all happened in a. very few seconds.” Montgomery testifies that he passed from the engine to the rear end of the car between the fence and ties when they were throwing out ties, and that it was safe to do so; that he told plaintiff to go to the engine, and get a red flag, and flag the train, but did not tell him which way to go, and supposed he was going to follow him [199] around the ties. “Looked around, and he was just passing between the car and the pile, kind of stooping. He was moving right along. I think I hallooed, ‘Look out. Do not go through.’ * * * I spoke too late, and it hit him.” It will be seen from the foregoing that plaintiff was simply ordered to hurry forward and flag the train; that he was left to choose his own way; that, before starting, he knew that ties were being rapidly thrown out, and that he could not be seen by the men in the box car until opposite or near to the door. He chose the way of danger, instead of the one of safety, knowing of the danger, and went heedlessly and recklessly into it, without giving any warning of his approach, and knowing that no warning had been given to the men-in the ear. Even if it was true that Montgomery had told him to go that way, and to “Now hurry,” still it was negligent in the plaintiff to go forward without giving some notice of his approach to the employees engaged in unloading the ties. We have not attempted to set out or discuss the evidence, bearing upon this question in detail. It is sufficient to say that, in our opinion, it shows without conflict that the plaintiff was guilty of negligence, directly contributing to cause the injury complained of. 2 II. Appellant complains that, at the end of plaintiff’s evidence, leave to file an amendment to its answer setting up a settlement and release was refused. There was no error in the refusal. The settlement and release alleged were made long prior to the trial, and, if desired to b.e pleaded, should not have been withheld until the trial. As, for' the reason stated, the judgment of the district court must be reversed, we do not consider other question urged by appellant. Reversed.