Beems v. Chicago, Rock Island & Peoria R.R.

BECK, J. . . . The intestate met his death in making an attempt to uncouple the tender from a car. The special findings of the jury show that when he went between the cars to uncouple them they were moving at an improper and unusual rate of speed. Counsel for defendant insist that this finding establishes the fact of contributory negligence on the part of the intestate. The petition alleges that defendant's employes in charge of the engine were negligent, in failing to obey a direction given them by a signal made by the intestate to check the speed of the cars. The testimony tends to support this allegation. The jury were authorized to find from the testimony that deceased made two attempts to uncouple the cars while they were moving. After the first attempt he came out from between the cars, and signaled directions to check their speed; he immediately went again between the cars to make the second attempt to uncouple them. His signal was not obeyed. He was authorized to believe that the motion of the car would be checked, and he was not required to wait, before acting, to discover whether obedience would be given to his signal. The jury could have found that after the signal had been given, and after he had gone between the cars, if their speed had been checked, he would not have been exposed to danger. His act, therefore, in going between the cars after having made the signal to check their speed, was not necessarily contributory negligence. . . . The special findings of the jury are, therefore, not inconsistent with the general verdict. . . .

The sixth instruction given directed the jury, in substance, that plaintiff's negligence will not relieve defendant of liability, if the negligent act of defendant, which caused plaintiff's injury, was done after the discovery of plaintiff's negligence, and defendant could have avoided the accident by the exercise of ordinary care. This rule is stated in the instruction as being an exception to the doctrine that defendant is not liable if the plaintiff contributed to his injury by his own negligence. Counsel for defendant insist that the negligence of the intestate existed, notwithstanding the knowledge by defendant of such negligence, and want of care to avoid the accident, and that the instruction is to the effect that intestate was not to be regarded as negligent if his want of care was known to the defendant and no care was exercised by its employes to avoid the accident. We think the instruction will not bear this construction. It very clearly expresses a correct rule of the law, namely, that defendant is liable, notwithstanding intestate's negligence, if ordinary care was not exercised to prevent the accident, after the intestate's negligence was known to defendant's employes. The form of the instruction is not important if it expresses with sufficient clearness the rule of law. . . .

The court instructed the jury that if intestate's foot was caught between the rails and he "was thus held and run over, without any negligence on the part of the other employes of defendant, such as is charged in the petition, then the plaintiff cannot recover anything." The defendant asked an instruction, which was refused, to the effect that if the intestate's foot was caught between the rails the defendant is not liable, even though the jury should find the negligence charged in the petition. The instruction given is correct. If intestate was run over by reason of defendant's negligence, surely it cannot be claimed that defendant is not liable, because intestate's foot was caught between the rails. It would be a strange doctrine to hold that defendant could back its trains with unusual speed, without obeying signals to move more slowly, and thus negligently run over a brakesman, and would not be liable, for the reason that the unfortunate man was fastened to the spot by his foot being held between the rails. Whatever was the intestate's condition at the time of the accident, whether free to move, or fastened to the place, the defendant is liable if its cars were negligently driven over him. . . .

The verdict, we think, finds sufficient support in the testimony. We are not accustomed to discuss the evidence in similar cases. Counsel for defendant have not done so in this case, and, doubtless, do not expect it from us. . . .

REVERSED.