Luby v. C. R. I. & P. R. , 52 Iowa 168 ( 1879 )

Adams, J.

The petition avers that Luby was thrown from the cars and killed, while he was in the exercise of due care and diligence, and without any fault ou his part. This averment, standing by itself, would be sufficient in respect to Luby’s freedom from contributory negligence. But the defendant claims that this averment cannot avail the plaintiff, if the petition in its more specific statements in regard to the manner of the accident shows that Luby was not free from contributory negligence, and the defendant claims that the petition does so show.

We might concede the defendant’s claim in regard to the rule of construction, but as to what the petition in its more specific statement shows wc have to say that we think that tire defendant’s position cannot be maintained.

The defendant contends that the facts are, as shown by the petition, that Luby undertook to pass from the flat cars to the caboose after the train had been put in motion, and was thrown off by reason of the motion of the cars while making such attempt.

Whether we conld declare as a matter of law that Luby was guilty ef contributory negligence, if such were the facts, and he was obeying the orders of a superior, as the petition avers, we need not determine. The petition, we think, is not susceptible of the meaning which the defendant puts upon it. The averment is that the defendant negligently caused the train to start whereby the said Luby * * * * was thrown, etc. If the fact was that Luby mounted the flat cars, and the train started while he was still upon the flat cars, and he, notwithstanding it had started, proceeded voluntarily in his movement toward the caboose, and was thrown off merely because he was walking upon a moving train, then he was not thrown off by the starting of tlie train as averred. He was thrown off by something which occurred subsequent to die starting. We do not see bow tlie plaintiff could have used more apit words to preclude tlie idea that Luby was thrown off by walking voluntarily upon a moving train.

In our opinion the demurrer should have been overruled.

Reversed.