Campbell v. C., R. I. & P. R. Co.

45 Iowa 76 | Iowa | 1876

Adams, J. —

1. evidence: •raUTOads.ty' I. The plaintiff testified that she paid the funeral expenses of her husband. She was then asked by her counsel the following question: “Did any one offer-to pay them, and if'so, who? "Was it any one on the part of the' railroad company?” This,question was objected to as immaterial, and the objection overruled; and she answered that Mr. Cox, the road master, offered to pay the funeral expenses.

In admitting this testimony we think that the District Court erred. We can conceive of no reason why it was introduced except as an admission on the part of the company of its liability, and it could not, of course, be properly introduced for that purpose. It is claimed by the appellee that it was introduced to prove that the deceased was in the employ of the company,-but it did not tend to prove such fact. In no. aspect could it be so regarded except as involving an admission of liability,- and it is not claimed that it was admissible for that purpose.

2. raidkoads: negligence, II. The court gave the jury the following instruction:

“11. Unless there was.more than ordinary danger in so doing, the section boss was not required to refrain from going on the track with his hand car and men, because the express train was. behind time, and until it should have passed; and if you find that there was no reasonable apprehension of danger in his so doing, and that after going on the track he proceeded with due care toward the approaching train, and did not run so close thereto as that lie did not have sufficient time to remove the car from the track with safety to the men before the train reached them, then he was not guilty of negligence in so doing.”

In giving this instruction we think that the court erred. The plain implication is that if there was more than ordinary danger the section boss should have refrained from taking the section hands upon the track until the train should have passed. There is, of course, more than ordinary danger in operating a hand car upon a track where a train is past due from- either direction. • Tet we have no doubt it is sometimes necessary that this should be done. If section hands should refrain from going upon the road at such times, the road would be uninspected no inconsiderable portion of the time. The necessity of inspection and repairs must be as great when trains are past due as at any other time. Indeed, it must often be greater. Time is often lost by trains by the general bad condition of the road. The safety of passengers requires that-vigilance respecting the road bed should not be relaxed at all times when trains are past due.

What measure of care is necessary in running a hand car where trains are past due is another question. Eeference should be had to the safety of the employes on the hand car on the one hand, and to the discharge of their duty so as to omit no reasonable care required by the safety of passengers on the other hand. Difficulties may arise by reason of these conflicting considerations. If so, each case must be determined upon its own facts. It is sufficient to say, in this case, that the safety of the section hands was not of such paramount importance as to make it necessarily negligence in the section boss to take them upon the road in the hand car when a train was past due, although more than ordinary danger was incurred thereby. Frandsen v. The Chicago, Rock Island & Pacific R. R. Co., 36 Iowa, 372.

We are of the opinion that the judgment of the District Court must be

Eeversed.