
    Joseph J. Douda v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    1 Railways: injury to employee: negligence: submission of issues. Where there was no evidence of any defects in a railway engine causing it to move without an application of steam, or that the company had reason to apprehend such an occurrence, and nothing to charge operators of the engine with knowledge of such defects, an instruction authorizing recovery for injury to an employee caused by 'its unexpected movement, while cleaning clinkers from the firebox, should not have been given.
    2 Same: negligence: evidence. The movement of a railway engine without an application of steam by the engineer is so improbable that the fact of its movement is some evidence that the person in charge was responsible therefor; and, taken in connection with the testimony of one injured thereby that the engineer at the time acknowledged adjusting the lever, which was competent as part of the res gestae, was sufficient to take the issue of negligence in that respect to the jury, although the engineer gave a different version of the conversation.
    3 Same: last fair chance. Where there was no evidence that the engineer might have avoided the injury by exercise of diligence after discovering plaintiff’s peril, the result of his contributory negligence, the issue involving the doctrine of the last fair chance ought to have been submitted.
    4 Same: settlement : fraud : evidence. Under a plea that an employee’s settlement of a claim for personal injury was procured by fraud, evidence that he and the members of his family present at the trial were unable to read English was admissible, to show that the employee did not know the contents .of the release and that the ■ same was misrepresented to him.
    5 Same. The statement of a claim agent in making settlement with an injured employee that he understood from the employee's physician that he would recover within a specified time is merely an expression of opinion, and will not justify setting aside the settlement on the ground of fraud; especially where the employee had the advice of his own physician and it did not appear that he relied upon the agents statement.
    
      Appeal from Lirm District Court. — HoN. J. H. Peeston, Judge.
    Tuesday, January 26, 1909.
    ActioN to recover damages for personal injuries sustained by plaintiff while in the employ of defendant. Verdict and judgment for plaintiff. Defendant appeals.'—
    
      Reversed.
    
    
      Carroll Wright, J. L. Parrish and Grimm, Trewin & Moffitt, for appellant.
    
      Barnes & Chamberlain and 8. K. Tracy, for appellee.
   Ladd, J. —

Plaintiff’s employment at the time of his injury was that of cleaning out clinkers from the fire boxes of defendant’s engines in its roundhouse at Cedar Rapids. The usual method of performing this work wTas to drop the “dump” by means of a bar from outside the wheels of the engine while it was standing over the ash pit, and to replace the dumping mechanism in the same way. But in this particular instance the plaintiff thought it necessary to crawl under the engine into the ash pit in order to close the dump. He advised the “hostler” in charge of the engine, who was- in the engineer’s cab, of his intention to go under, having had the engine moved to what he considered a proper place for that purpose, and then proceeded to crawl, feet first, 'through the narrow opening between the drive wheels and above the side bar or connecting rod. When his body was part way through, the engine moved backwards, and the consequent rising of the side bar pinched or crushed the plaintiff, causing the injuries of which he complains. There was a question under the evidence as to whether plaintiff was not guilty of contributory negligence in attempting to go under the engine at all, or in attempting to go under it in the manner above described, but there is no complaint as to the instructions with reference to contributory negligence, and that feature of the case may be passed without further notice.

The defendant is alleged to have been negligent in two respects: (1) In that its hostler in charge of the engine, with knowledge that plaintiff was under it, without warning him started, moved, or permitted the engine to move; and (2) the engine was unsafe and defective, in that it would start forward without the lever being moved or steam being turned on or any action of the person in charge, and defendant, knowing this and plaintiff’s position, took no precaution to prevent this, but allowed the engine to move, and thereby injure him. The evidence failed to point out any defect in the engine, or that it had ever started before without steam being turned on, or that defendant had' any reason to anticipate such an occurrence. Nevertheless the jury was instructed that if they found “that said locomotive was unsafe and defective, in that it would start after being stopped without moving the lever therefor or turning on the steam for the purpose of starting it, and that it would with the knowledge of defendant or its employes in charge thereof start without any action on the part of those in charge thereof, and the defendant took no precaution or safeguards to prevent its said movements, and that said locomotive was by reason thereof and the careless and negligent acts of the person in charge thereof, without notice or warning or signal to the plaintiff, started and permitted to run upon the body of plaintiff while under said engine and doing said work, and that by reason thereof plaintiff was injured,” then, if such injuries were without fault of plaintiff contributing thereto, plaintiff was entitled to recover. Even though this instruction be conceded to be correct in the abstract, the evidence was not such as to authorize it. There was nothing in the record to charge the employees operating the engine with knowledge of any defect therein or to indicate any information concerning it on defendant’s part. Even if the engine be conceded to have been defective, this was not shown to have been apparent or discoverable on reasonable inspection, nor does it appear from the evidence that the defect had existed prior to that night, or that defendant was negligent in failing to discover and repair it or in using it in the condition it was in. So that, even though it might be inferred from the moving of this locomotive engine without the application of steam or other agency, if it did so move, that it was then out of repair, there is no basis in the evidence on which to found a charge of negligence against the defendant, unless the doctrine of res ipsa loquitur be applied, and this under the peculiar facts of this case was precluded by a previous instruction “that tire accident occurred will not of itself show negligence on the part of defendant, but you should determine the question (defendant’s negligence) from all the facts and circumstances before yon.” Nor does the instruction first quoted proceed on the theory that such doctrine is applicable, but exacts specific findings from the evidence constituting the elements of negligence alleged. As to whether it should be applied in a case like this, there is some difference of opinion among the members of the court, and, as the cause was not. tried on that theory, we shall make no pronouncement on the subject at this time. But see valuable notes to Fitzgerald v. Railway (Minn.), 6 L. R. A. (N. S.) 337, and Byers v. Carnegie Steel Co. (Wash.), 16 L. R. A. (N. S.) 214.

II. But there was sufficient evidence to carry the case to the jury. True, the hostler' in charge of the engine testified that he neither did nor omitted anything which might' have caused the engine to move; but the engine was under his ímmediate control, and the movement of an instrumentality of such construction and great weight without the application of force is so extremely unlikely that the fact that it did move furnishes some evidence that the person in charge and whose duty it Avas to manage it Avas responsible for such movement. To this circumstance should be added the testimony of the plaintiff that immediately after getting from the engine, and while lying on the ground near by, he said to the hostler: “Harry, Avhat in the hell have you been doing? You knoiv I notified you.” To this the hostler .replied: “I didn’t throiv the lever in the center. I thought I had the steam shut off, but I didn’t.” This Avas admissible as a part of the res gestae. Alsever v. Railway, 115 Iowa, 338. Even though the hostler declared that plaintiff misunderstood him, and that he said instead that he had “put it [lever] ■in the center notch,” and did not see AAdiat caused it to moAm, the question of veracity was for the jury, and from all the evidence they might have found that the movement of the engine was due to negligence of defendant’s employee in charge.

III. The court instructed the jury, in substance, that, even though plaintiff was negligent in attempting to go under the engine or in getting under it, yet, if defendant’s employee in charge of the engine with knoAvledge of his peril could by the exercise of ordinary care have avoided the injury, tbe defendant was liable. Tbe evidence was not sucb as to warrant tbe jury in finding tbat tbe defendant was guilty of any negligence subsequent to conduct of plaintiff claimed to have constituted contributory negligence, and for tbis reason tbe issue involving tbe doctrine of last fair cbance ought not to bave been submitted to tbe jury.

IV. Much is said in argument of evidence and tbe instructions to tbe jury on tbe question whether a settlement evidenced by a written instrument pleaded and introduced for tbe defendant was procured by fraud. Evidence that plaintiff and tbe members of bis family present at tbe time when tbe agent for tbe defendant secured bis signature to tbis instrument of release were unable to read tbe English language was admissible under tbe issues; for, fraudulent representations on tbe part of tbe agent being pleaded as made for tbe purpose of securing sucb release, it was competent to show tbat plaintiff did not, in fact, know the contents of tbe instrument which be signed, and tbat sucb contents were misrepresented to him by defendant’s agent. Tbe court erred, however, in leaving it to the jury to say whether defendant’s agent promised plaintiff a job in connection with the securing of the instrument of release; there being no evidence tbat any sucb promise was made.

It was also error m connection with tbe allegations of fraud to submit the question whether defendant’s agent, as an inducement to tbe settlement, represented that plaintiff’s injuries were slight, and tbat be would soon recover therefrom. Tbe only evidence as to sucb representations was tbat defendant’s claim agent at the time of procuring a settlement represented tbat he understood from defendant’s physician tbat plaintiff would be well in three weeks, and, further, that the claim agent stated affirmatively that defendant would be well in three weeks. It was not shown that the statement as to what the physician said was false, and the direct representation that plaintiff would recover in three weeks was evidently merely an expression of opinion not shown to have been fraudulently made. Nason v. Railway, 140 Iowa, 533; Kilmartin v. Chicago, B. & Q. R. Co., 137 Iowa, 64. Furthermore, it does not appear that plaintiff relied on the claim agent’s statements, for he insisted upon pay for four months’ time which he would lose by reason of the injury. Plaintiff had had the advice of his own physician, and was in as good a situation as defendant’s agent to know how soon he was likely to recover. A motion by appellee to strike appellant’s reply is overruled.

For the reasons pointed out, the judgment of the trial court is reversed.  