86 Iowa 677 | Iowa | 1892
On the night of April 4, 1888, a passenger train on the defendant’s road was wrecked at a point west of New Hampton, in Chickasaw county, and the plaintiff’s intestate was killed, and this action is to recover damages therefor. The accident occurred near the Middle Wapsie river, where the road passes along an embankment from five to seven feet high, and between two bridges that are some eight hundred feet apart; one of the bridges being across the Wapsie river, and the other known as the “dry bridge.” The accident happened about five o’clock in the morning of the fifth of April. The following testimony from a witness for the plaintiff, who lived near the accident, will show something of the situation, and the facts will be important in connection with points to be considered. H. H. Reckers, for the plaintiff, testified:
“I know the bridge. I live on the Wapsie, three-fourths of a mile north of bridge, and five miles west of New Hampton. I was at home at the railroad accident there, April 5, 1888. It had been kind of thawing weather for a day or two. There was quite a good deal of snow on the ground. It had thawed up to a kind of slush, but was not thin enough to run yet. On the fourth of April it looked cloudy, and rained quite a lot, — considerable during the night. There was quite a little north wind in the morning. The rain turned the slushy snow to water, and made it run. The frost was not much out of the ground. The ice was in the creek the day before the wreck, and, the night before, it moved; that is, it rained, and where it had an escape it went out. In some places it stayed in the brush. It was a rainy, foggy night; as foggy as I have seen for a good many years. I went to the wreck between four and five o’clock. It had got a little light, but was still foggy, but not so much as in the night. I*680 approached wreck on east side. The water at north side was anyway halfway up -on the stringers, and I think upon, if not over, the ties. I crossed dry bridge, and came to wreck. I just came to a spot where there was broken ties; and on the north side of track lay a large cake of ice. It was kind of slid upon the track, and the north end of it was braced down in the water. It was so close to north rail that one couldn’t put his foot between the rail and the cake of ice. This ice laid, I should think, three or four car lengths east of the locomotive. It was east of sleeper, and between sleeper and bridge. If I remember right, where the ice was the south rail was entirely torn off for a ways. Right where the ice was the flanges of the rails were off. The bolt heads seem to have been cut off or broken off along the rails, and it just spread apart and bent the rails up. The ice was right between the sleeper and the first car, — that is, west of the sleeper. When I went there the dry bridge was bent over to the south four or five inches. There was ice lying against the bridge. I noticed the condition of the ties that had been disarranged by the wreck.”
The allegations of negligence against the company are: First, in maintaining its road; and, second, in running its trains at too high a rate of speed.
I. The defendant asked the following instruction:
1. negligence: fective track: injury.: miw. “12. The plaintiff has offered evidence bearing upon the condition of the ties in the roadbed at the place where the engine left the track. If you find that the engine came m contact with a large body of ice, and that such body of ice caused the derailment of the train, then you are to disregard all the evidence bearing upon the condition of the ties.”
The instruction was refused, and the court gave the following:
“9. First, as to the alleged negligence of the*681 defendant in failing to keep its track in proper repair. It is claimed on the part of the plaintiff that the track was out of repair in consequence of defendant’s neglect to remove decayed and unsound ties, and supply them with sound ones. It was the duty of the defendant to take due care to see that the ties in use are not'permitted to decay to such an extent as to endanger the safety of its passengers, and an omission of this duty is a negligent failure to keep the road in proper repair. It is for you to say, in the light of the evidence, whether or not the defendant was guilty of negligence in regard to the ties at the accident in question.”
The giving and refusal of these instructions are grounds of complaint. The ground of the appellant’s contention in this respect is that the record fails to show a condition or state of the evidence to justify the court’s instruction, it being the claim that it appears conclusively from the record that the cause of the accident was the body of ice on the track, because of which the accident occurred, and would have occurred independent of any condition of the ties; that sound ties would not have avoided the accident, nor changed the result as to the plaintiff’s intestate. Of course, if the record sustains the claim, the instruction is erroneous, because then the condition of the road, other than as to the ice thereon, could not have caused the accident. But we cannot agree with the appellant’s conclusion. It is very probable that the accident would not have occurred except for the ice, but that the ice would have caused the accident with any condition of the roadbed is so much a matter of doubt, under the evidence, as to make it a question for the jury. If, but for the rotten condition of the ties, the train would not have been derailed, then the accident was the result of a failure to properly maintain the road. The cake of ice and its situation as to the track are somewhat differently described by the witnesses, and its situation when
Tbe court said to tbe jury that under tbe pleadings and tbe evidence it could not find tbe defendant negligent because of tbe ice on tbe track, and confined tbe inquiry to negligence in failing to keep tbe road at tbe place of tbe accident in proper repair, and in running its trains too rapidly. Tbe court also said to tbe jury in its fourteenth instruction: “Tbe burden is also on tbe plaintiff to prove by a preponderance of evidence that tbe negligence proven caused tbe death of the plaintiff’s intestate.” To recover, then, under tbe tbe instructions, tbe jury must find that tbe accident was a result of negligence in one of tbe two particulars stated. Tbe court further said to tbe jury: “3. In order to recover anything in this action, tbe plaintiff must prove by a preponderance of evidence that tbe defendant, by its agents and employees, was guilty of tbe negligence aforesaid, or some part of such negligence, and that tbe negligence so proved caused tbe derailing of tbe train and tbe death of Willard Andrews.” If tbe jury found that tbe ice was the sole cause of tbe derailment and injury, there could have been no recovery under tbe instructions given. While tbe instruction asked might have been given, we do not think there was error in the refusal.
*684 “14. The Carlisle tables have been offered in evidence, bnt you are not to regard such tables as proving that plaintiff is to recover for forty and three-fourths years of life. You are to bear in mind that Willard Andrews was liable to die at any time, and that there was no certainty that he ever would have lived until he was twenty-one years old. You are not to presume that he would be diligent in the acquisition of property, or successful in saving what he might acquire.”
It was refused and the court gave the following:
“17. If you find for the plaintiff, you will assess the damages to which you believe him entitled. In doing so you will bear in mind that this action is not brought for the personal benefit of the father of Willard Andrews, but by the administrator of his estate, to recover in damages such sum of money as such estate has lost in consequence of his death. Prom the nature of the case, the law can give no rule by which this estimate can be accurately made, and the difficulty is increased by the fact that the deceased died so young, and before his business character was fully formed. The best that can be done is to consider the age of the boy at the time he died; the expectancy of of his life as shown by the Carlisle table; the physical character of the boy; his mental and moral character and attainments, so far as they, affect the promise given by the boy, in a business point of view; the business in which his father was engaged; and the business character of the boy, in so far as such character was formed, — and, considering these things, make the best estimate you can of the loss in money suffered by his estate in consequence of -his being taken off at so early an age by this accident.”
It is insisted that the instruction refused was “especially applicable to the case.” We think it was applicable and could well have been given; but is there
The claim as to excessive damage is based on the difference allowable under the different rules; that of actual damage to the next of kin being less than the damage to the estate. Under the rule given the amount allowed could not welí be thought excessive.
We think the judgment should be affirmed.