89 Iowa 8 | Iowa | 1893
It is conceded that Thomas Scott was killed while traveling as a passenger on one of the defendant’s trains. The casualty was caused by a collision with another train. There is no controversy about the liability of the defendant, except that arising upon the alleged contributory negligence of the deceased. The question in controversy is stated in the appellant’s argument in the following language: ‘‘Decedent, while a passenger on defendant’s train, was killed by a collision; and, therefore, at the threshold of the argument appellant’s negligence must be admitted, and it should be held liable to the plaintiff for the accident, unless decedent’s contributory negligence exonerates the company from liability.” This is the only question in controversy on this appeal. And it may be said that there is
The case has once before been in this court upon an appeal by the defendant. It was reversed on the ground that the evidence showed that the deceased was guilty of contributory negligence by riding in an unsafe place on the train. See 78 Iowa, 57. It appears from the facts recited in the opinion on that appeal that the deceased was a member of a traveling theatrical troupe known as the “Lights of London.” The company owned a car in which to transport its show property by railroad. There were three bunks or berths for persons to sleep in at one end of the car. This car was hauled from Albert Lea, Minnesota, to Cedar Rapids, in this state, by the defendant. It was placed in a passenger train next to the engine. The train was due at Cedar Rapids at about 2:30 in the morning. Before reaching Cedar Rapids it collided with a north-bound passenger train on the defendant’s road. The deceased was in the show car when the collision occurred, and was killed by reason of the collision. The evidence upon the first trial showed that the show car was not adapted to the transportation of passengers, and it was found as a fact by this court that it was “of unusual length, high, narrow and flimsily built,” and that it was negligent for Scott to ride there, unless he “was therein some manner by the consent of the railroad company.” It is further said in the opinion that no one testified that it was the duty of Scott to ride in this car to care for the property. It was further found as a fact that Scott and three other showmen, after riding in one of the passenger coaches for a time, went forward to the show car, and that the conductor went into that car, and took up their tickets, and said to the four men
The evidence upon the last trial was not the same as on the first trial. It was materially different. On the last trial there was evidence which showed that the car in which deceased was killed was a strong, well-built car,- and that in the collision this car telescoped the baggage ear which was attached to it in the rear. There was no evidence on the last trial that the deceased was forbidden to ride in the show car, and no evidence that the conductor, when taking up the tickets, told deceased or any other person in his presence or elsewhere that they must not ride in the show car, or that he gave any order or direction on that subject. And there was evidence on the last trial that Scott’s duty to his employer required that he should ride in that car, to care for the show property, and that a stove and lamps and berths were in the car for the comfort of the employees whose duty required their presence in the car night and day in the handling of the. scenery and properties. We have stated enough of the evidence on the last trial to show that it differed in many material respects from that discussed by this court upon the former appeal. There is no question in our minds that upon the last trial the question whether the deceased was chargeable with contributory negligence was a question for the jury to determine, and that its finding ought to be conclusive. Why the evidence was • so radically different on the two trials is not a question for our consideration.
It is contended by counsel for appellant that the plaintiff. ought not to recover, because his intestate voluntarily left the passenger coach for his own pleasure, and knowingly assumed a more hazardous place on the train, and by that act directly contributed to his death, The facts of this case do not, in our opinion,
It is not necessary to further consider the case. Under the evidence the jury might well find that the deceased was in the direct line of his duty in riding in the show car, and that he was allowed to remain there without any effort on the part of the conductor to induce him to return to a passenger coach; and not only this, but, as the evidence is now presented, it can not be said as matter of law that riding in the show car was attended with any known hazard.
The judgment of the district court is affirmed.