163 Iowa 13 | Iowa | 1913
The cause was here before (Dieckmann v. Railway, 145 Iowa, 250), and the facts as there recited need not be repeated. Verdict was again returned for the defendant; this time the jury passing on the issues raised by the pleadings.
Under the allegations of plaintiff’s petition, the only negligence -with which plaintiff charges defendant is: First. That the train which struck Frederick J. Dieckmann approached the crossing where Dieckmann was struck at an unlawful, dangerous and negligent rate of speed of more than twenty miles an hour. Second. That the defendant railway company negligently failed to give said Dieckmann timely and sufficient notice of the approach of said train so that he might safely go from the depot to the south platform to take his train for Cedar Rapids. Third. That the defendant’s agent negligently undertook to, and did, conduct, lead and direct the said Dieckmann upon the crossing in front of the rapidly approaching train. Unless the jury believe that the defendant was negligent in one of these particulars above set forth, and also find that the said Dieckmann was not guilty of negligence directly contributing to the injury, your verdict should be for the defendant.
This is criticised for that, as is said, it exacted a finding that the train must have moved faster than twenty miles, an hour to- constitute negligence. The instruction, it will be observed, purported only to state the negligence of which defendant was charged, and this ground was mentioned in the
It is claimed by the plaintiff that the train which struck Mr. Dieckmann approached the crossing where the accident occurred at an unlawful, dangerous and negligent rate of speed of more than twenty miles per hour. In the operation of said train, the defendant is charged with knowledge that the passengers for such train were required to cross its tracks to the south platform before said train arrived at the station, and it was the duty of the defendant to so run its train in approaching the station and crosswalk between the two platforms, as not carelessly or needlessly to expose its passengers, crossing to the south platform, to needless and excessive danger.
The law does not fix or designate any particular rate of speed at which trains may be run or operated. And whether defendant was negligent in running its train at the rate of speed, which the evidence shows the train in question was running when .the deceased was struck, is a question of fact for the jury to determine from all the facts and circumstances given in evidence before you. In determining that question, the jury may consider the kind of train it was; the manner of its equipment and operation, the condition of its braking appliances ; whether the engine and cars were under the control of the engineer in charge of the same; the fact that the train stopped at De Witt for water; the manner it approached the station, and the speed it was running as it neared the crossover in question, and from these, and all the facts and circumstances in evidence before you, you will determine whether said train was run at such high, excessive, and improper rate of speed as to amount to negligence on the part of the defendant.
If you find that said train was run at an excessive and negligent rate of speed at the time it struck the deceased, and
If you find from the evidence that the speed of the train on approaching the crosswalk and in striking plaintiff’s intestate was excessive and negligent as already defined, then the fact, if it be a fact, that it had been usual and customary to run said train past said depot and over said crosswalk at the same rate of speed, would not justify or excuse defendant for running its train at an excessive and negligent rate of speed at the time of the accident, if it did so run said train.
At the outset, it will be noted the claim of the plaintiff was accurately stated. Of course, the words “of more than twenty miles per hour” might as well have been omitted; but these were as found in the appellant’s petition. Their use, however, in the fourth instruction as well as in the eleventh, in the light of these three paragraphs of the charge, could not have misled the jury.
The only witness who expressed an opinion as to the speed of the train fixed it at eight or ten miles an hour, admitting that his estimate on the former trial was ten or twelve miles an hour and the evidence that the customary speed at that point was from six or eight to twelve miles an hour was undisputed. Under this evidence and these instructions, the jury must have understood that the law denounced no particular rate of speed to be negligent, and therefore that if the train moved at a dangerous speed this would be negligent, even though moving slower than twenty miles an hour. This was emphasized by directly submitting “whether the defendant was negligent in running its train at the rate of speed which the evidence shows the train was running when deceased was struck, ’ ’ and later on in the thirteenth instruction, in saying that even though moving at the customary speed, if this were found to be negligent, the fact that it was customary
Discovering no reversible error, the judgment is Affirmed.