153 Iowa 418 | Iowa | 1911
The defendant operates a line of railway from Minneapolis to Des Moines through the town of Perry, in Dallas county, and the Interurban Bailway Company operates a line of railway from Des Moines through Perry, crossing the track of the defendant company at grade about a mile southeasterly from Perry. At this crossing, the line of defendant’s railway runs approximately north and south, Perry being to the north, and the line of the interurban railway is approximately east and west. The general surface of the country is level, so that a train approaching the crossing from the north may be seen from the crossing for a distance of two or three miles. About 3 o’clock on the morning of December 16, 1909, an extra engine of defendant was being run from the north towards this crossing in charge of an engineer and fireman. The headlight and classification lamps on the front of the engine were burning. The engine was stopped for a few minutes at Perry, and then was started south towards the crossing in question at full speed; the object of the engineer being to reach the next station south, seven miles distant, in time to meet and pass a train scheduled to arrive from the south at that station in about fifteen minutes. As he was required by
The interurban railway is a trolley line, operated in general by electric power, but during the period of its construction an ordinary railway steam engine was used on its line, and this engine had, prior to the accident, been used to haul a freight train daily each way between Des .Moines and Perry, although freight cars were also hauled by trolley engines. The freight train with which defendant’s engine collided at the time of the accident was hauled by this steam engine.
At the crossing in question, no interlocking system had yet been installed, but there was a derailing switch on the interurban line, in the operation of which it was necessary that any car or train should be stopped before reaching the crossing, and could not proceed until an employee had gone ahead across defendant’s track and closed the switch by means of a lever at a switch stand; there being such a switch stand on each side of the crossing at a distance of seventy-four feet to the west and sixty-five feet to the east of the crossing. These switch stands are on the south side of the interurban track. During the nighttime, each of these switch stands is provided with a light, abont six feet from the ground, these lights being so arranged that when the switch is open they show red east and west along the interurban track and green to the north and south along the defendant’s track; and when the switch is closed, ready-for the crossing of defendant’s track by the interurban cars, they show red along the defendant’s track and green along the interurban track. Near the crossing is a signal standard, about twenty
The interurban freight train with which defendant’s engine collided, hauled by a steam engine, as already indicated, consisted of four cars and a caboose; the total length of the train being about two hundred and thirty-four feet. As it approached the crossing from the east, it was stopped by the engineer before the derailing switch was reached, and one Davis, the head brakeman, carrying a lantern, got down on the north side of the engine and went ahead to the crossing, where he stopped, looking both north and south for approaching engines or cars on the defendant’s line. Davis testified that he saw nothing that looked like a headlight or other light, or an approaching engine or train, and observed only two lights to the north, not moving, probably three-fourths of a mile distant. He then proceeded to the switch stand west of defendant’s track, and lined up the derail by the operation of the switch, and again went back to defendant’s track, and observed it in each direction without seeing any headlight approaching or hearing any whistle or bell;
The duty to'be on the lookout for possible dangers to persons crossing the track exists also at places where, as is known to the railway company, persons are in the habit of crossing, although it is no public highway. , Thomas v. Chicago, M. & St. P. R. Co., 103 Iowa, 649; Booth v. Union Terminal R. Co., 126 Iowa, 8; Bourrett v. Chicago & N. W. Co., 152 Iowa, 579. And we have recently held that a railway-company must exercise reasonable care to'avoid injury to a landowner using a private crossing, although, of course, the trains are entitled to precedence at such crossings, and the landowner is under obligation to use the crossing with a view to his own safety with reference to its use by the railway company, and to keep out of the way of approaching trains. Ressler v. Wabash R. Co., 152 Iowa, 449. Likewise, where a street railway line crosses a steam railway track, although the trains of the steam railway may be entitled
The cases cited by counsel for appellant, relating to alleged contributory negligence of decedent as conductor, are not in point. It is, of course, true that if the conductor of a train, in the exercise of his authority, causes the train to be operated in a negligent' manner, or acquiesces in such negligent operation with knowledge thereof, or fails to discharge his duties as conductor in such a way as to contribute to his own injury, he can not recover on account of an accident to which he has, by his own fault, thus contributed. By way of illustration of the extent and applicability of these general propositions, see Dewey v. Chicago & N. W. R. Co., 31 Iowa, 373; Lane v. Central Iowa R. Co., 69 Iowa, 443; Nordquist v. Great Northern R. Co., 89 Minn., 485, (95 N. W. 322). But decedent had the right-, under the rules of the company, to direct Davis, as brakeman, to flag his train past the crossing in -question, and when Davis undertook to discharge this duty he -acted as the ■servant of the interurban company, and not simply as the servant or personal representative of the conductor. If Davis did those things which the rules of the company required to be done, then his negligence, if any, in not seeing the approaching train was the negligence of the company, and not the negligence of decedent; and it is immaterial in this ease whether decedent gave to Davis all the instructions which should have been given to him, provided Davis did, under the circumstances, everything which the rules of the company required to be done. The negligent manner of
The elements of contingencies of life, such as ill health, nonemployment, and diminution of earning capacity as age advances were included in the instruction approved in the case last cited, but, as they are entirely speculative, we think that the omission to call attention to them does not constitute reversible error, unless a special and appropriate instruction is asked on the subject. These are matters of ordinary human experience which the jury may be presumed to take into account in determining what the decedent would probably have earned.
The judgment of the trial cdurt is' therefore affirmed on condition.