109 Iowa 547 | Iowa | 1899
Tbe deceased, who lived at or near tbe town of Vail, in Crawford county, desiring to transact some business at Denison, purchased a ticket at Vail to Denison and return, and immediately left for tbe latter place. After concluding bis business be went to tbe depot, intending to take a freight train known as “No. 24” from Denison to
In support of the ruling of the trial court it is contended that, as deceased never entered the way car, he did not become a passenger, and that the defendant owed him no active duty. 'Two propositions are relied upon by appellee: (1) That the deceased did not become a passenger upon its train; and (2) that he was guilty of contributory negligence. In solving these questions, we must take that view of the case most favorable to plaintiff. There is evidence tending to show that when the deceased went to the depot at Denison he inquired of defendant’s agent if he could ride upon the train which he afterwards boarded, and was informed that he could; that deceased then started west, and got upon the platform of the way car, which was standing at a place where passengers were ordinarily received and discharged. On this point defendant’s agent said that he told Jorgensen that he had better stay where he was, as the train was going to pull up, and that the way car would be opposite the depot. But this same witness said on cross-examination that he “saw Mr. Jorgensen go down there to- take the train to go east. I have seen passengers get on and off the way car down where it was. They generally get on and off there. I never heard of any objections. I was not mailing the point with him that he could not get on any place except the platform, but was making the point that he did not have to walk down there; if he would wait, the train would back up on the side track, and he could get on there.” There can be no question then but that the jury may have found that deceased was justified in boarding the oar where he did. If he in fact boarded