78 Iowa 57 | Iowa | 1889
On the night of January 9, 1883, the defendant company placed in and was taking over its road from Albert Lea, Minnesota, to Cedar Rapids, Iowa, as a part of its passenger train, a car owned by the theatrical company known as “Lights of London.” In this car were wagons, baggage, scenery and other paraphernalia of the company. In one end of the car were three bunks or places for persons to sleep, with blankets and straw or other bedding. The train consisted of a sleeper, two passenger coaches, a smoker, a baggage-car, and the show-car in question; the
For the purposes of the case the negligence of the defendant company is unquestioned, and the question of contributory negligence alone requires our attention. The testimony undisputed shows the car in question to have been one of unusual length, high, narrow and flimsily built. It was not a car of usual strength, i. e., like other cars for the transportation of passengers or freight. It seems to have been constructed with especial reference to transporting the property of this company. Being next to the engine, it was in what is considered the most dangerous place in the train, and, as we understand, there is no contention but that it was in fact a dangerous place to ride, and that it was negligence for Scott to ride there, unless he was there in some manner by the consent of the railroad company; and appellee urges this ground upon one of two grounds : (1) That the contract for the transportation of the car entitled him to be there, and (2) that he was there by the consent of the conductor in charge of the train; and we notice each in its order.
I. The train, as composed, came from Minneapolis to Albert Lea, over another road, and was at Albert Lea transferred to defendant’s road, and in the condition we
The facts as stated have sufficient support in the testimony to be treated as facts, except that as to the fire in the car, and as to that we find no evidence^ except that after the accident the conductor says he “put out the fire,” which may have been the result of a fire kept in the car, or the lighting of the car. But we think
II. Is there testimony upon which a finding can rest that the deceased was in the car with the consent of the conductor in charge of the train ? Little need be said on the question. Let it be conceded that, if there by the consent of the conductor, his negligence was excused ; what are the facts? We merely refer to the statements of the conductor as shown in the other division of this opinion. We think it is true that thereafter the conductor knew these men were in that car, and that is claimed as a consent that would make the company liable. While it might be construed as a consent for them to remain at their peril, nothing more could be claimed for it. He had warned them of the danger; had informed them that they were violating the rules of the company, and that they must not ride there. What more could a conductor have done, .except to force them out ? It is plainly manifest that these men, after this warning, remained there to take their chances, and it proved, as to some, a sad experience. The rules of the company required the conductor to caution men when in dangerous places on the train. The rule is a judicious one, and in this case was faithfully observed. We do not think it necessary for the conductor to repeat the warning, or to “remonstrate,” as suggested in argument. Such a warning ought to be sufficient for any prudent man. We think the verdict is so wanting in testimony for its support that the district court should have granted a new trial on defendant’s motion.
Reversed.