
    Charles McFall, Appellant, v. Iowa Central Railway Company.
    Contributory negligence; verdict should not have been directed.
    
      Appeal from Mahaska District Gourt. — Hon. D. Ryan, Judge.
    Thursday, December 12, 1895.
    Action to recover for personal injuries sustained by the plaintiff while -in the employment of the defendant as brakeman' on a freight (train, land while engaged in coupling oars, because of certain 'alleged negligence on the part of the defendant. The defendant answered, denying generally, and the cause was tried ■to a jury. At the 'Conclusion- of the evidence for the plaintiff, the defendant moved for a verdict, which motion was- sustained, and to which plaintiff excepted. Plaintiff 'appeals.
    
    Reversed.
    
      J. F. & W. R. Lacy and Bolton & McOoy for appellant.
    
      Anthony G. Daly and L. G. Blanchard for appellee.
   Given, C. J.

I. Plaintiff was injured on the night of January 8, 1893, in the defendant's yard a't Keithsburg, 111.,, while engaged in coupling ears, by reason, as is alleged, of slipping on ice that had formed in 'the yard at that place. The negligence charged is‘as follows: “That in the yards of defendant at Keithsburg, in Hlinois, the defendant 'had a water 'tank near -the freight and passenger depot of defendant; 'that 'the defendant carelessly and negligently permitted said' tank to get ouit of repair, so- 'the water leaked from it (and ran over the tracks, .-there forming a sheet of slippery 'ice, rendering ‘it dangerous for brak-emen 'to -perform their duty •by coupling and uncoupling cars on said track; * * * that said injury was caused by ith-e neglect o-f defendant 'in not furnishing a reasonably safe place for the plaintiff to work, and in negligently permitting its wafer 'tank to become out of repair, and negligently permitting the water to run out on said track so as to form a sheet of ice ithereoin.” Defendant's motion for a verdict was upon the following grounds: “(1) There is no evidence that the defendant was guilty of negligence which caused the injury. (2)There is no evidence that the plaintiff was not 'himself guilty of contributory inegOiigence. (3) There i's affirmative evidence that 'the plaintiff was 'himself guilty 'of contributory negligence, and negligence which resulted in his injury. (4) (Because on all the evidence, the plaintiff 1® nolt emitJitled to recover. (5) The evidence for plaintiff shows- that plaintiff 'had the means of knowing, by the exercise of ordinary care, the condition of the tank and tracks 'at tb® place where the injury occurred, and assumed the risk. (6) The evidence shows, without conflict, that plaintiff diid have 'actual and ftfli knowledge of the condition- of .She (bracks and of Ithe water tank, and of the grounds eompitaiaied of, ‘at the 'time of the 'injury; and in making the eoupilling he assumed the risk, and was therefore guilty of contributory negligence.”

II. The contention's are whether there wais such evidence oí ■the negligence 'charged against the defendant, and of the absence of negligence on 'the part of the plaintiff, as 'that the cause should have been submitted to the jury. The negligence charged is. that the defendant “permitted said .tank to get out of repair, so the water leaked from i't and ran over the tracks, 'there forming a sheet of slippery ice.” If appears that at all tanks a limited quantity of water is unavoidably 'Spilled upon the ground, in taking water 'therefiom into tire 'tenders. Appellee contends- that there is no evidence that the tank in question wais oult of repair, or •that any other leakage is shown than that which necessarily and 'unavoidably -occurred in taking waiter. We will quote briefly some of the testimony of the witnesses on that subject. N. L. Anderson says-: “The -spout that was connected with fhe water 'bank when MeEal-l fell was the same 'spout that had- been used there for ■ some years. * * * The 'tank -had settled down. I't was 'the old 'bank, * * * It would make 'the same oonneotionis, but after 'the tank 'had settled, of course, there would more water leak out * * * phe tank would leak more after it had settled than before it had settled, because you haven’t go-t the elevation of the spout to force the water. * * * The 'tank was 1-n the same condition January 8, 1893, ’that it had been for some time.” W. A. Trussell: “January 8, 1893, the yards were covered with ice, from the eld -depot to the west end -of the yards. * * * The spout was a little too short, and, When they took water in their engine tanks, /■•there was Water leaking out where the spout was connected with the same. * * * The right of way was covered with ice, east of said water 'tank, six -or eight oar lengths. The water out of which the ice was formed came from a leak in the water tank caused by the spout being to-o short. * * * The old water tank was in- a leaky Conditio® when in use, by reason of -the spout being too short.” Al. Johnson says: “The water tank leaked water. * * * There was a small 1-eak all the time from the 'tank, on the southeast side; also, when the engines would rake water, there would be a. waste of waiter Where the spout is--attached to the tauk. * * * The water 'tank was in bad -repair, and leaked -considerable. * * * The water 'tank wais -in a dilapidated condition. I't was decayed in- some places. The worst feature was the spout connected with ifch-e tank. It lleaked when taking water, and caused m-ost of the leakage. * * * There was ia small stream running there -all the time, Which covered said ■track.” M. E. I/oyd says: “It leaked water. * * * The water that leaked from the tank ran east nearly one hundred feet, also west 'and south, over the tracks, and froze into ice on the right of way. There was a leak in the tank at 'all times. M-ore would leak when the engines were faking wafer.” It seems to us quite clear ■that under this evidence the issue as to defendant’s negligence should have been submitted to the jury.

III. It is contended that 'as the plaintiff was familiar with the yards 'at KCiltibburg, and ¡all the surroundings, he did know or should hiave known of the presence of the ice, 'and was therefore ■guilty of negligence in attempting -to make the coupling when and where 'he did. The evidence shows that, up to within two or three days of the accident, the weather 'bad 'been mild; that no ace bad been formed on the yard; aind 'that the leak from the tank settled into the sand. It also 'tends to show that for some time prior to the accident the plaintiff had been upon night runs, and that when upon night or day run® he usually went to and from Ms train, o<n arriving or departing, at a point east of the place of the .accident. In short, there is evidence fending to show that the plaintiff did mot know of 'the presence of the ice at the place where he 'fell, and 'he was not negligent 'in not knowing of it. Several authorities are cited, but 'the principles involved 'in these inquiries are well settled 'amid undisputed. Therefore 'these authorities do molt require further notice. We have mot set out all the evidence, hut s'imply sufficient to show that there was evidence tending to establish plaintiff’s cause of 'action. We have carefully considered ail the evidence, and reach the conclusion that under the 'announced in Meyer v. Houck, 85 Iowa, 319 (52 N. W. Rep. 235), the case should have been submitted to the jury. — Reversed.  