Bryce v. Burlington, Cedar Rapids & Northern Railway Co.

McClain, J. i. railroads: injury to servant; autotfonsinstruc' 1. Bor appellant it is contended that the court erred in stating the issues to the jury, in that the failure to equip its cars with automatic couplers, as required by statute, was included, although the evidence ° ' . related entirely to failure to so equip the tender, which was not in itself negligence under that statute, as held in the previous- appeal. It is claimed, therefore, that the case should have been submitted only on the allegations of negligence in failing to properly equip the tender with a reasonably safe coupling appliance and negligence in the operation of the engine. However, one of the allegations of the petition was that the cars operated by the defendant in its train in connection with which the plaintiff received his injury were not equipped with automatic couplings as required by law, and, if there was any evidence of failure to so equip such cars, and that such failure proximately contributed to plaintiff’s injury, then it was proper to submit the issue as to negligence under the statute. There was therefore an issue under the pleadings as to whether there was negligence occasioning the injury to plaintiff in failure to provide the proper equipment throughout the train of automatic appliances. It may be that under the evidence there was no question as to the proper equipment save as to the tender of the engine, and that under the holding on the previous appeal there was no question left to be decided .under the application of the statutory provisions. But however this may be, the court, after stating the issues raised by the pleadings, directed the jury that the statute had no application to the equipment of the tender, and thereby removed any objection which otherwise might have been available to the defendant on account of the inclusion in the statement of the issues of the question as to failure to equip the cars of its train with automatic couplings as required by statute. Cahow v. Chicago R. I. & P. R. Co., 113 Iowa, 224. [486] 2. Assumption of risk: evidence; submission of [485] II. Failure of the court to submit to the jury the question of assumption of risk by the plaintiff as to the [486] equipment of defendant’s tender with, a reasonably safe coupling appliance is relied on as constituting error. In response to this contention counsel for appellee argue that assumption of risk was not sufficiently pleaded by the defendant. But on the former trial it was assumed that there was an issue as to assumption of risk, notwithstanding the statutory provision, inasmuch as the statute, did not apply to the equipment of the tender; and we would not be justified in holding on this appeal that the pleadings did not properly raise such an issue. However, on an examination of the record we find no competent evidence tending to support the defense of assumption of risk. It appears from the record that prior to this accident the engines and tenders on the railroads running into Cedar Rapids, where the defendant company had its headquarters, and where the plaintiff entered into defendant’s employment, were generally equipped with automatic couplers, and that many, if not nearly all, of the engines and tenders of the defendant’s company were so equipped. The plaintiff was not employed as either head or rear brakeman, but as third brakeman on a short run from Vinton to Iowa Halls. His principal duty was to load and unload merchandise at staing in switching that he received the injury of which he tions, and in addition he was to help do the switching if he had time. And it was when he was thus- temporarily assist-complains. He testifies that he had no knowledge, while he was thus employed, that any of the engines and tenders of defendant’s road were without automatic couplings, until he attempted to make the coupling in connection with which he was injured, and found this tender to be provided,with a link and pin coupling. It further appears that this engine and tender had not been in general use on the train in connection with which plaintiff was employed, but were substituted for the regular engine and tender on this particular run. We .reach the conclusion, therefore, that under the circumstances the plaintiff was nót chargeable with general [487] knowledge that engines and tenders not equipped with automatic couplers were in use on defendant’s road, and that he had not assumed any risk with reference to the link and pin coupling on the tender of this particular engine, unless such assumption of risk resulted from the fact that he had knowledge a few seconds before the accident, and while in the very act of making the coupling, that the tender was provided with a link and pin coupling. In Coles v. Union Terminal R. Co., 124 Iowa, 48, it is said that it is only where an employe has been made aware of the danger sufficiently in advance to enable him to protect himself therefrom that application of. the doctrine of .assumption of risk can be made, and that, while knowledge of the danger may come from a warning given, or by actual • discovery thereof, the employe is not charged with such knowledge, unless brought home to him in time to enable him to avoid the accident, without instantly abandoning his service. We think it would be an unreasonable application of the doctrine of the assumption of risk to apply it to a case where the employe, without being charged with knowledge that he might be called upon to use a link and pin. coupling, discovers the fact just as he is about to effect- the coupling, and hold that he should immediately abandon his service with the company, on penalty of being held to have assumed the risk of making the coupling with - such appliances. When the employe discovers defective appliances he is justified in continuing in the employment on assurance of his employer that the defect will be remedied, and such continuance for a reasonable time does not establish the assumption of risk in the use of such defective appliance. Branz v. Omaha & Council Bluffs R. & B. Co., 120 Iowa, 406, Hosic v. Chicago, R. I. & P. R. Co., 75 Iowa, 683. We reach the conclusion, therefore, that the evidence would not have justified the jury in finding that plaintiff had assumed the risk of the use of the link and pin coupling on the tender, and any error of the court in failing to properly sub [488] mit tbe question as to assumption of -risk was without prejudice to the defendant. 3. Instructions. III. Complaint is made of an instruction with reference to contributory negligence to the effect that, if plaintiff was injured solely through his own carelessness, then the defendant was not liable; and it is argued that, if plaintiff’s negligence contributed to his injury, although it was not the sole cause thereof, he was not entitled to recover. But in the instructions asked by defendant on this subject the very expressions used by the court to which objection is made were incorporated. The effort of the court evidently was to embody the rule as to contributory negligence which defendant was contending for, and if the court borrowed erroneous language from the instructions asked defendant should not complain. There seems to have been no prejudical error, so far as the defendant is concerned, and the judgment of the trial court is therefore affirmed.