100 Iowa 487 | Iowa | 1896
The petition alleges that a railway owned and operated by the defendant crosses a public highway a short distance .east of the city of Perry; that on the seventh day of June, 1894, while the plaintiff was on her way to Perry, riding in a buggy drawn by a single horse, and approaching from the north the crossing described, a train of the defendant passed over the crossing from the east; that the employes of the defendant, who were operating the locomotive engine of the train, neglected and omitted to sound the whistle at least sixty rods before reaching the crossing, and failed and neglected to continuously ring the bell on the engine for that distance, in approaching and passing the crossing. The petition further alleges, that by reason of the failure to sound the whistle and ring the bell, the plaintiff was unaware of the approach of the train until so near the crossing that her horse became frightened and unmanageable, causing her, while endeavoring to control the horse, to be thrown on and against a wheel of the buggy, thus causing certain injuries, which are described, and for which she seeks to recover. The petition also alleges that the plaintiff did not, by negligence on her part, contribute to the accident and resulting injuries. The answer contains
Section 1 of chapter 104 of the A.cts of the Twentieth General Assembly requires that a bell and a steam whistle be placed on each locomotive engine operated on any railway in this state, and that the whistle “be twice sharply sounded at least 60 rods before a highway crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed. * * *” The statement of the abstract in regard to the evidence, and the fourth special finding,- show that this requirement was not observed, and that the defendant was in that respect negligent. When the special findings of a jury are inconsistent with its general verdict, the former control, and judgment may be rendered accordingly. Code, sections 2809, 2858. But it is only when the special findings are manifestly inconsistent with the general verdict that the latter can be set aside, and judgment be rendered on the former. Johnson v. Miller, 82 Iowa, 697 (47 N. W. Rep. 903), and (48 N. W. Rep. 1081); Conners v. Railway Co., 71. Iowa, 492 (32 N. W. Rep. 465); Coffman v. Railway Co., 90 Iowa, 462 (57 N. W. Rep. 955). Ordinarily, it is the duty of a person about to cross a railway track to look.for an approaching train, or if the view be obstructed, to listen for it at a reasonably safe distance from the crossing, and the failure to do so is negligence. Schaefert v. Railway Co., 62 Iowa, 626 (17 N. W. Rep. 893); Haines v. Railroad Co., 41 Iowa, 231); Nixon v. Railway Co., 84 Iowa, 331 (51 N. W. Rep. 158). But there are exceptions to this rule. It was said in the case last cited that “the traveler may be placed, without
The special findings show that there was a place on the highway, between the opening in the hedge, one hundred and thirty-four feet north of the track, and the plaintiff’s residence, at which she could have known of the approaching train had she looked and listened for it, but the distance of that place from the track is not shown. It may have been so far away that reasonable prudence did not require the plaintiff to look and listen there. It cannot be said, as a matter of law, that she was negligent in not looking or listening for the train before she reached the opening . in the hedge near the track. The fact that it would have been possible for the plaintiff to have seen or heard the approaching train before she reached that opening, does not show that she was negligent in failing to look or listen for it. Hamilton v. Railroad Co., 36 Iowa, 40. Facts which the special findings do not disclose may have shown that reasonable care on her part did not require her to do either. The court charged the jury at considerable length in regard to the care which the plaintiff was required to prove that she had exercised to entitle her to recover, and the general verdict shows that the jury found that she did not, by her negligence, contribute to the accident. In our opinion, the special findings do not show that she was negligent. It may be that the evidence showed that she was, but, if so, it did not authorize a judgment against her on the special findings, but only a new trial. We conclude that the district court erred in sustaining the motion of the defendant for judgment. —Reversed.