
    Louis J. Pierson, Trustee, v. Chicago & Northwestern Railway Company, Appellant.
    1 Railroads: construction of foot guard: negligence: evidence. In an action for injuries to a brakeman caused by ah alleged defective foot guard at the switch, the evidence is held to present a question of negligence on the part of the railway company in constructing the guard, which was for the jury.
    2 Assumption of risk. A railway brakeman does not assume the danger incident to defective blocking at a switch, of which he had no actual knowledge.
    3 Contributory negligence. The question of whether a brakeman was guilty of contributory negligence in going between freight cars for the purpose of uncoupling the same, rather than passing to the other side of the train and using the safety appliance for that purpose, was, under the circumstances, one for the jury.
    4 Evidence: due care: custom. Where, in a particular emergency, the question of due care on the part of a brakeman in uncoupling freight cars arises, the general custom or usage in performing such service may be shown.
    5 Evidence: negligence. In an action for an injury resulting to a brakeman from uncoupling freight cars, he may show that upon entering the service he was directed by the superintendent to accompany a train crew and observe their manner of performing the work and govern himself accordingly, and that upon such trip cars were uncoupled in the manner employed by plaintiff when injured.
    
      Appeal from Linn District Court. — Hon. J. H. Peeston, Judge.
    Monday, January 16, 1905.
    Action by plaintiff, as assignee of N. P. Harrington, to recover damages for personal injuries received by the latter while in defendant’s employ as brakeman, resulting, as alleged, from the negligence of defendant in failing to place proper and sufficient foot guards or blocks between the main rail and the guard rail of its track at a switch; the result of the defect being that Harrington’s foot was caught between the rails while he was attempting to uncouple freight cars in motion, and that his foot and ankle were run over and injured so that amputation of his leg above the ankle became necessary. Verdict for plaintiff for $7,500, and from judgment thereon defendant appeals.
    
    Affirmed.
    
      James C. Dams, for appellant.
    Biclcel, Croclcer & Tourtellot, for appellee.
   McClain, J.

At the time of the accident, Harrington, in the discharge of his duties as brakeman in the employ of defendant, was engaged in attempting to uncouple from the engine two freight cars which were being kicked upon a side track at the station of Wright, on a branch line of defendant’s railroad, between Belle Plains and Muchakinock. The engine and oars were provided with safety appliances for coupling and uncoupling, by means of which, it was intended that a brakeman, in such operation, need not step inside the rails. A part of the appliance consisted of a rod across the end of the car, connected with the coupling pin, and provided at the outside end with a handle, by the use of which the coupling pin could be raised. The rod on the rear of the tender extended clear across, and was provided with a handle or lever at each end, .so that it could be operated from either side; but the rods on the cars extended to only one side, being so arranged that, whichever way the car was being operated, there would be a lever or handle on the right-hand side of the forward end of t the car. The engine and cars in question were being backed Westward on a side track which was north' of the main track, and Harrington after turning the switch so as to throw the cars on the side track — the switch stand being also on the north side of the main track — waited until the engine and cars had been-backed far enough, so that the coupling between the tender and the adjacent car was about opposite the switch stand, when he attempted to uncouple the cars from the tender by raising the lever of the coupling appliance attached to the tender. Tor some reason not explained in the evidence, this appliance failed to work, and Harrington was unable by the use of it to raise the coupling pin out of the socket so- as to release the cars from' the tender. He thereupon communicated to the engineer, through the fireman, a' signal to stop; and, after the engine and cars-had been brought to a standstill, he gave another signal, indicating that he desired the engine to be again put in motion slowly backward, and at the same time stepped between the tender and cars, and attempted to raise with his left hand the pin in the coupler attached to the freight car. While thus engaged, walking between the tender and the car, inside the rail, as the evidence tends to show, his foot became caught between the guard rail and the main rail; and, in attempting to throw himself from 'between the car and the tender, and outside of the rail, his foot, which had in some way been loosened, was caught under the wheels of the'tender, and crushed.

The questions involved in the case relate to the- negligence of the company, the assumption of risk by Harrington, and Harrington’s contributory negligence, and the case may be most conveniently disposed of by considering the points raised as to each of these questions.

I. It, is contended for appellant that there was no evidence of negligence on its part as to the condition of the blocking between the guard rail and the main rail, and that there was no defect in such blocking which could be attributed to defendant as constituting a fault. ° But p[ie evidence tends to show that the blocking in the main rail (that is, the block of wood fitted in below the ball of the rail, and intended to malee the-space between such blocking on the main rail and a similar blocking on the guard rail as narrow as the space between the balls of the two rails, so that a person’s foot could not be caught under the ball of either rail) was defective, in that it did not come out as far as the end of the blocking of the guard rail, and also in that it did not come up flush with the ball of the rail, and left a small space, in which the sole of a shoe might be caught, and also that in the blocking at the side of the guard rail was a groove or crack which also furnished an opportunity for the sole of a shoe to become caught; the combined result of these defects being that a person’s foot might be caught and held between the rails, so that it could not be extricated without drawing it backward; the very danger which the blocking of the rails was intended to prevent. Whether these defects, which it appears had existed for such length of time that the company was chargeable with knowledge thereof, were of such nature that their existence constituted negligence, was clearly a question for the jury. The court cannot say, as a matter of law, that, in the exercise of reasonable diligence, the company should not have so blocked these rails that Harrington’s foot would not have become so firmly caught. therein that he could not draw it out without pulling it backward; nor can we say that a space of a fourth of an inch between the ball of the main rail and the blocking, or a’groove a quarter of an inch deep in the blocking of the guard rail, was so minute and insignificant a defect that its existence should not have been noticed by the defendant in the discharge of its duty to furnish a safe track for the use of its employes, and removed, or the danger therefrom in some way obviated, nor that it was not negligence on the part of the defendant to originally so arrange this blocking that such defects should exist. We are clear that, as to the negligence of the defendant, the evidence made a case to go to the jury.

II. As to' assumption of risk, there is no evidence what-ever that Harrington had actual knowledge, or could be chargeable with knowledge, of the defect in this particular blocking. He had had occasion only two or three times to engage in coupling or uncoupling cars at this station, and there is no evidence that he had been so -engaged at this particular switch — much, less, that he had had occasion to notice the condition of this blocking. It cannot be reasonably contended that a brakeman engaged in discharging his duties over a long line, of road must inform himself, at his peril, of the condition of the blocking at each switch on the line, and it is not in any way shown that he had any actual knowledge of this particular defect. Trott v. Chicago, R. I. & P. R. Co., 115 Iowa, 80. It is argued for appellant that Harrington was charged with knowledge that there was more or less danger necessarily incident to guard rails, and that he assumed the risk of such danger. Let this be conceded. Nevertheless he did not assume the risk of a defective blocking, unless he was in some way charged with knowledge thereof; and thq evidence tends to show that his injury did not result from stumbling over or striking his foot against the rail or blocking, as he had reason to assume that it existed, but from catching his foot in a defective blocking, of which he was not charged with knowledge. The argument that Harrington should have avoided the danger incident to the guard rail, if conceded to be sound, would lead to the result that an entire, failure to block, or a faulty blocking, no matter how defective, would not be ground of complaint, even though the employe had no knowledge in the particular case of the failure or defect.

III. The principal controversy in this case is as to whether Harrington was guilty of contributory negligence in the method adopted for uncoupling the car from the tender of the engine. It is argued for appellant that, ° ° . as the, tender and the car next to it were provided with automatic couplers for the purpose of enabling employes to make the uncoupling without going between the cars, it was contributory negligence on the part of Harrington to step between the tender and car, inside the rail, while the engine was in motion, for the purpose of pulling the pin. We think it ought to be fully conceded, in view of the federal and state legislation requiring railroads to equip their cars and engines with automatic couplers, that it would be contributory negligence on the part of an employe to ignore the safety appliance provided, where it could reasonably be used, and resort to the method formerly in use, confessedly more dangerous, of stepping between moving cars, within the rail, for the purpose of mailing an uncoupling. Morris v. Duluth, S. S. & A. R. Co., 108 Fed. 747, (47 C. C. A. 661); Gilbert v. Burlington, C. R. & N. R. Co., 128 Fed. 529 (63 C. C. A. 27). But it appears from the evidence that Harrington found that the automatic appliance on the tender, which was the only one within his reach as he attempted to uncouple the car from the tender on the north side, would not work, and it thereupon became necessary for him to exercise. the reasonable judgment of a prudent man as to how the uncoupling should be effected; and it is not claimed by counsel, nor would it be reasonable to argue, that Harrington would have been justified in refusing to uncouple tbe cars in any other manner than by tbe use of tbe safety appliance, necessitating tbe delay of tbe train until tbe difficulty in tbe use of tbe appliance could be discovered, and it could be made to work. Tbe contention of counsel is that three or four different ways, all of them less dangerous than stepping inside of tbe rail while tbe engine was in motion to pull tbe pin, might have been resorted to by Harrington; and it is true that the witnesses for tbe defendant testify .that these different ways would have been safe, and were available. They say- that Harrington, before signaling tbe engineer to back up tbe engine,’ might have crawled under tbe cars to tbe other side, and used tbe coupling device on tbe freight car, or might have gone around tbe engine to the other side for that purpose, or might, by an intricate set of maneuvers, not necessary to explain, have got tbe cars separated by means of pulling tbe pin and opening tbe coupling books before the cars were kicked back. It is conceded, however, that it was impracticable to uncouple tbe ear by means of pulling tbe pin by band while tbe engine was standing still, for tb© arrangement of tbe automatic coupling device is such that tbe pin can be raised and tbe cars effectually uncoupled only while in motion, whether .the uncoupling is done by tbe use of tbe handle of tbe automatic device, or by pulling tbe pin by band. It seems to us, therefore, that the only practical methods which Harrington could have used for effecting an uncoupling were either to step inside of tbe rail while tbe engine was moving, or, by crawling under tbe coupling or by going around the engine, attempt to make use of tbe automatic coupler on tbe car, which would have been available to him on tbe other side of the track. And let it be noticed here that Harrington was on tbe usual side when be attempted to make the uncoupling. He was on tbe side of tbe track where be bad just used tbe switch, and where be would necessarily again use tbe switch after tbe uncoupling bad been effected and tbe engine bad moved forward, ready to back down again on the main track for coupling to the balance of the train.

The concrete question is, then, whether after Harrington had attempted, in a perfectly proper manner, to effect-the uncoupling by the safety' appliance provided for that purpose, and had been unable to do so, he was, as a matter of law, guilty of contributory negligence in not going to the other side of the train for the purpose of attempting the uncoupling by means of the safety appliance on the car, and, instead of doing so, stepping inside the rail while the engine was in motion for the purpose of pulling the pin by hand. In support of the proposition that Harrington’s conduct was, as a matter of law, negligent, counsel rely upon Morris v. Duluth, S. S. & A. R. Co., supra; Gilbert v. Burlington, C. R. & N. R. Co., supra; Dawson v. Chicago, R. I. & P. R. Co., 114 Fed. 870 (52 C. C. A. 286). In the Morris Case it is held that where a comparatively safe and a more dangerous way are known to the servant, by means of which he may discharge his duty, it is negligence for him to select the more dangerous method. The same-proposition is repeated in the Gilbert Case, in which San-born, Circuit Judge, expresses the views of the majority of the Circuit Court of Appeals that the brakeman, finding that'the safety device available on the side of the train where he was would not work, was guilty of contributory negligence, as a matter of law, in going between the cars to- uncouple .them by hand, when he might have effected the uncoupling by going to the other side of the train, and using the safety device there available. It is conceded in the opinion, for the purpose of the case, though not decided, that, where the safety appliance furnished to uncouple cars cannot be made to accomplish that end, it is sometimes necessary for brakement to go between moving cars to uncouple them, and that, when that necessity exists, it is not negligence for them to pursue this course. But in that case, Thayer, Circuit Judge, expresses himself as not prepared to say that the employe was guilty of negligence because be did not try to lift tbe coupling by tbe.lever on tbe opposite side of tbe train before stepping between tbe cars, and bases bis assent to tbe conclusion of tbe other two judges that tbe brakeman was negligent on tbe ground that be bad not used reasonable means to ascertain whether tbe coupling device within reach would operate to uncouple tbe cars before stepping inside tbe rail to pull tbe pin by band. In tbe Dawson Case tbe question was whether a brakeman was negligent in swinging between a flat car and a box car, while in motion, for tbe purpose of riding on tbe brake beam of the flat car, using tbe handhold' provided in accordance with an act of Congress, when be might have made use of tbe stirrup and handholds on tbe side of tbe box car without incurring tbe risk of swinging in between cars; and Thayer, Circuit Judge, expressing tbe views of tbe majority, finds that the brakeman was, as a matter of law, guilty of contributory negligence, on tbe ground that it was clearly apparent that be exposed himself to unnecessary risk, while' Caldwell, Circuit Judge, dissents on tbe ground that tbe rule stated by tbe majority prescribes a course for brakemen impracticable in practice, and contrary to established usage in such cases; insisting that tbe question, of negligence of tbe brakeman was, under tbe circumstances,, one for tbe jury.

We think that, under tbe decisions of our own court,, tbe question whether, when Harrington found that the safety appliance immediately available to him would not work, be acted as a reasonably prudent man, under tbe circumstances, in attempting to make tbe uncoupling by stepping-between tbe rails after tbe engine was in -motion, rather than-ineur the additional delay necessary to reach tbe other side of tbe train, and try to effect tbe uncoupling by tbe appliance-on tbe freight car, was for tbe jury. We have not recognized any such rule as that it is, in law, negligent to perform a-service in tbe more dangerous of .two methods in which it may be performed, regardless' of tbe circumstances under wbicb the employe is called upon to act. On the contrary, we have held that, even where the facts are not in dispute, it should be left to the jury to say whether a course of conduct is negligent, if reasonable men may honestly differ as to the conclusion to be drawn from such undisputed facts. Back v. Iowa Central R. Co., 112 Iowa, 241; Barnhart v. Chicago, M. & St. P. R. Co., 97 Iowa, 654; Whitsett v. Chicago, R. I. & P. R. Co., 67 Iowa, 150; Milne v. Walker, 59 Iowa, 186. Therefore it was properly left to the jury in case to say, not simply whether it would have been safer bffijfíbilarrington to crawl under the coupling, or go around s4h@ftdv.of the engine to the other side of the train, and a.t-Qifeaffl]ftt uncouple the car by means of the safety appliance, Sfijpi®attempt to uncouple it by hand, as he did, but whether, sdfaiffja^Hqithe circumstances, in view of the necessity for sRft?5n which is involved in the railway service, he i>WS@^li^ig@fitan adopting the method which he did adopt, IfeftSgfaf ¿Mother might have been safer. Bucklew v. nC$l&$¡$iÍ>oyítizfSS Co., 64 Iowa, 603; Gibson v. Burlington, strifes;® I^liJbi<Pgt, 107 Iowa, 596; Curtis v. Chicago N. W. (70 N. W. 665); Ashman v. Flint & K&tzM.p3.AVU,&í)®rÉltMi. 567 (51 N. W. 645); Florida Cen-s$$.T®l>mooney, 40 Fla. 17 (24 South, 148); Brinkmeier v. Missouri Pacific R. Co., (Kan. Sup.) 77 Pac. riwo uro lo saoisiosl ylolfia pfii bearing on the question of ,r5®ffifrihgtoj&%J'OgS:e#gi^e °áfsfekre, that while witnesses tes--ftMedstteáií safer to go to the other side gjiiaieislsci^d gigjfqhgoMigdtiMÍ'tffee the safety appliance there, irnrausí®fiBT all agreed that, in their ■oipü?&(SidÍ!l! ''Seen, they never knew of sibaf-%P®4l ’báilL^dflfllg)#gd9di !§&]|§cted under such circum-bstá£E§i§®9'feÉííi:th:g®4ittSssesVMl5s!tátlSláll^ agree that the method r!pffla^ffS'dít>^®áfflÍííg§ífi S'ííi^én’éhiltiálly pursued by a brake-limálídvheSf M)(ídl&ShblW‘ifcc?:'éffdfe<i'i:t|]S#:%feidb,ápling by means of 'ttó@rsa#g^4f)fHam ^áfaoMiáígí^gl^amfe1 Counsel for appellant insist, however, that the court erred in admitting evidence of this custom on the part of brakemen in defendant’s employ, and in allowing the jury to take such custom into account as bearing on Harrington’s exercise of due care in this instance, contending that no custom or usage will justify or excuse negligence; and many authorities are cited in support of this general proposition, of which the following are especially relied upon: Kroy v. Chicago, R. I. & P. R. Co., 32 Iowa, 357; Hamilton v. Des Moines Valley R. Co., 36 Iowa, 31; Muldowney v. Illinois Central R. Co., 36 Iowa, 462; Ferguson v. Central Iowa R. Co., 58 Iowa, 293. But without stopping to analyze these cases in detail, it is sufficient to say that none of them directly holds that the customary and approved method of performing a service cannot be shown, as bearing on the question whether an employe performing such service in that manner was negligent in so doing. On the other hand, it has been decided in many cases in this and other states that proof of the usual and customary method of performing a service may be received, as bearing on the question of the employe’s exercise of reasonable care in following the method indicated by custom and usage. Thus, in Whitsett v. Chicago, R. I. & P. R. Co., 67 Iowa, 150, it is said, with reference to the action of a brakeman in stepping from a freight car to the tender of the engine in order to dismount from the train by means of the engine steps to operate a switch, instead of dismounting by means of the ladder provided on the freight car: In the absence of express rule or direction prescribing the particular course he should pursue under the circumstances, he was required to choose between two courses; and if, in making that choice, he adopted the course usually followed under like circumstances by men in that calling, that fact would have a very important bearing upon the question whether he exercised due care in making the choice.” With reference to admissibility of evidence of custom or usage in such cases, this court, in Lowe v. Chicago, St. P., M. & O. R. Co., 89 Iowa, 420, used this language in a case where it was claimed that the acts of an employe constituted contributory negligence, because in violation of the rules of the company agreed to by him, although in accordance with the usage or custom of other employes under similar circumstances: There is a conflict in the cases, some of them holding that a usage or custom cannot be shown as against a rule or contract like that under consideration;, but we think it is clear that it is competent to show a usage or custom on the part of the employes of defendant at variance with and in violation of such a rule when the defendant has, through its proper officers, knowledge of its violation, and their conduct shows that they acquiesced in such violation.” If custom or usage may be shown as justifying a course of conduct which is contrary to the express regulation of the company, certainly it is admissible to show what was the proper or reasonable course of conduct under particular circumstances, in the absence of any regulation. Without further amplification, the following cases may be cited as fully supporting the proposition that where the question is whether, in a particular emergency, the employe was negligent in the method pursued by him in rendering a service, the general custom or usage as to the method of rendering such service may be shown: Spaulding v. Chicago, St. P. & K. C. R. Co., 98 Iowa, 205; Branz v. Omaha & C. B. R. & B. Co., 120 Iowa, 406; Ashman v. Flint & P. M. R. Co., 90 Mich. 567 (51 N. W. Rep. 645); Curtis v. Chicago N. W. R. Co., 95 Wis. 460 (70 N. W. Rep. 665); Kane v. Northern Central R. Co., 128 U. S. 91 (9 Sup. Ct. 16, 32 L. Ed. 339); Hannah v. Connecticut River R. Co., 154 Mass. 529 (28 N. E. Rep. 682).

Evidence was also admitted, over defendant’s objection, tending to show that when Harrington entered its employ, about three years before the accident, he was directed by the superintendent to go with a train crew and see how they performed their work, and to govern himself .accordingly in discharging bis duties as brakeman, and that on this instruction trip the brakeman¡, under circumstances similar to those wbicb confronted Harrington at the time of this accident, went between the cars inside the rail, while the engine was in motion, to effect an uncoupling, instead of waiting to go around to the other side of the train. Certainly, if defendant saw fit to instruct Harrington that it was proper to uncouple cars in this manner’, under the circumstances, rather, than incur the delay necessarily incident to going to the other side of the train, he was justified in assuming that this was the method of procedure required of him. True, he assumed the risks incident to this method of procedure, so far as they could be reasonably known to him; but he did not assume the additional risk involved in the existence of defective blocking, of which he had no knowledge.

Many questions are elaborately discussed as to the correctness of instructions asked and refused, as well -as the correctness of those given; but an examination of the points urged with reference to the giving and refusal of instructions satisfies us that the case was correctly presented to the jury, in view of 'the rules of law announced in this opinion. The judgment is therefore affirmed.  