155 Iowa 544 | Iowa | 1912
The accident under consideration occurred at 3 p. m. on the 1st day of August, 1908. The intestate was walking upon defendant’s track going south towards Bloomfield. The train which struck him was also going south. The day was clear, and no distracting circumstances appear. The intestate was very deaf. The circumstances immediately preceding the accident are stated in substance in appellant’s brief as follows: “That the deceased was a trespasser, using the railroad track of defendant as a thoroughfare, without leave or license, is conceded in both the pleadings and testimony; that he was very hard of hearing — in fact, almost totally deaf — which was unknown to the trainmen of defendant company. He was walking down the center of the track with his back to the north', from which direction the train was coming. It was a bright, clear day, in the middle of the afternoon, and there was nothing unusual or out of the way in the appearance of the deceased to attract the attention of the engineer. The engineer, one of the oldest and most experienced employees of the defendant, riding in his 'accustomed place in his engine, had just come down a grade and to a straight level piece of track, when about 1,200 feet ahead of him he saw a man, the deceased, walking down the track and about 500 feet south of a second bridge or trestle, which the engineer knew he must pass over with his train. The train was running about thirty miles per hour, and the engineer, with his train, passed over the first bridge, called in the evidence Fox Eiver Bridge, 'and the noise of going over the bridge, he thought, would alarm him. The train then ran across a fill or embankment, and then across the second bridge. All of the time the engineer had kept his eye on the deceased, expecting him to make some move, and having run almost over the second bridge, the engineer concluded he had paid no attention to the oncoming train, -and just as he was leaving this bridge, and while 500 feet and over from the deceased, sounded the danger alarm. At
If we had to find the facts in this case, some of us anight hesitate to hold t-he engineer guilty of negligence under the evidence. But there is not such an absence of evidence that it can be said as a matter of law that a verdict should have been directed. It is made to appear
The foregoing disposes of the principal questions argued. We find no error in the record.
The judgment below must therefore be affirmed.