132 Iowa 687 | Iowa | 1906
The accident resulting in the injury of which plaintiff complains, occurred at Buffalo, .this State, a station on the line of defendant’s railway. Plaintiff’s husband, S. H. Croft, was agent for defendant at said station, and resided with his family in a portion of the depot building provided by defendant for that purpose. Passing through Buffalo, the railway tracks run east and west, the one used by west-bound trains being nearest the depot building. The building is one story in height, and a platform extends the full length east and west. The waiting room for passengers is located at the extreme west end. There
Now a licensee, as that term is used in connection with railway property, and the operation of railway trains, is one who goes upon the station grounds or tracks for purposes other than transportation by permission either express or implied. The permission is express, of course, when given in terms; it is implied when the use is tolerated or acquiesced in under such circumstances, or, being known, is allowed to continue for such a length of time as that permission should be inferred. Murphy v. Railway, supra; Kay v. Railway, 65 Pa. 269 (3 Am. Rep. 628); Berry v. Railway, 124 Mo. 223 (25 S. W. 229). It follows that if plaintiff was accustomed with frequency to leave her living rooms in the depot and go into the office to assist her husband in his station work, and this was known to the officers of the defendant in charge of the division, and her’ conduct was acquiesced in, or at least, not objected to by them, then the rightfulness of her presence there cannot be open to question. She was, to say the least, a licensee whose presence was to be expected, and to whom the defendant owed the duty of exercising due care to avoid inflicting injury upon her. And in this view a case was made proper to be submitted to the jury.
6. Negligent operation of train. YI. Finally, it is insisted that tbe finding of negligence is not supported by the evidence. Counsel say in argument that not only did plaintiff fail to substantiate her allegation that the train was running at a high and dangerous rate of speed, but that tbe evidence conclusively shows that, at tbe point where derailment took place, tbe track was in a reasonably good condition. Tbe derailment is shown to have taken place" at or near tbe east switch. And, beyond serious controversy, there was in that vicinity a greater or less number of rotten and loose ties to which tbe rails were not and could not be securely spiked. Tbe precise point at which derailment took place is involved in more or less controversy. We shall not attempt to discuss tbe testimony. It is sufficient to say that a finding was warranted to tbe effect that derailment came when tbe train reached tbe rotted ties and insecurely spiked rails. Tbe only witness who testified directly as to tbe speed of tbe train said that it was running at a rate of about thirty-five miles an hour. In addition to this there was tbe fact
Other contentions of the appellant are either disposed of by what has already been said, or are without merit. Finding no error, the judgment must be and it is affirmed.