Carpenter v. Chicago, Rock Island & Pacific Railway Co.

126 Iowa 94 | Iowa | 1904

Bishop, J.—

One ground of the motion to direct a verdict was that there was no proof of any negligence on the part of defendant which was the proximate cause of the accident and injury. The acts of negligence as charged in the petition may be summarized thus: Pirst, that the train in question was being run at a speed of more than sixty miles an hour, whereas the defendant, through its officers and agents, had promised and agreed to slow down all trains as they approached the bridge; second, that no warning by whistle or bell of the coming of the train was given to employes working at said bridge; third, that at a point about three hundred feet west of the bridge a whistle warning should have been given for a highway crossing the track about three hundred feet east of the bridge, and none such was given.

1. Negligence: evidence. I. In respect of the ground of negligence first stated, it will be sufficient to say that the evidence wholly fails to show that a promise or agreement had been made as alleged. Plaintiff attempted to prove by Sisley conversations upon the subject between himself and Carpenter, on the one hand, and one Gibney, a train dispatcher in Des Moines, and also the telegraph operator at De Soto, on the other hand. This evidence was ruled out, and properly so. Gibney was connected with another division of the plaintiff’s road. Moreover, no preliminary proof was made to the effect that a train dispatcher or a station telegraph operator had any authority in the premises. Even if this were not so, there is no evidence in the record tending to prove that any one connected with the operation of the road, and in authority, had knowledge that work was being'done ’at the time at the bridge in question. And the work being done was not such as to interrupt or interfere with the ordinary operation of trains over the road.

2. Negligence: warning proximate cause. II. The other matters of negligence alleged may be disposed of in brief. We need not stop to consider what might have been the effect of the situation had Carpenter been unconscious of the approach of the train. The fact is that he was advised of the danger about as soon as the enginemen could have discovered him. Now, manifestly, negligence cannot be predicated upon a failure of duty to warn when the person to be warned is fully alive to and presently advised of the impending danger, and this practically as soon as the warning could have been given. Nor can it be said that in such a case the failure of duty ■— conceding that the duty existed — was the proximate cause of the accident; and this, if for no other reason, because under the circumstances shown the accident would have occurred irrespective of any warning that might have been given. What we have said applies to the failure to sound the whistle for the highway crossing, and with even more force, as it appears that in respect thereof the duty did not arise until the train was within about one hundred feet from the place occupied by Carpenter on the track. In our view, the facts bring the case within the principle which governs in cases of accidents upon highway crossings. If the traveler see or hear the train approaching, or is otherwise warned as thoroughly as he would have been had the whistle been sounded or the bell rung, he cannot bottom a charge of negligence on a failure to sound an alarm, as such cannot be said to be the proximate cause of the accident. Willoughby v. Railway, 37 Iowa, 432; 2 Thompson on Negligence, section 1558.

The verdict was rightly directed, and the judgment is affirmed.