131 Iowa 741 | Iowa | 1906
Plaintiff’s action is grounded upon negligence of the defendant. One of the grounds alleged is that, ivhen advised by Ilooyer and Newgren of the peril to which Graham was exposed, the train employes failed to take such prompt and effective means as were within their reach to accomplish his rescue; and as the case went to the jury such was the only ground of negligence submitted. The plaintiff, of course, is not in position to complain of this, and accordingly we shall have no occasion to make inquiry respecting any of the other grounds alleged. By motion for a directed verdict at the close of all the evidence in the case, by request for instruction, and by. motion for a new trial, defendant challenged the right of plaintiff to recover for that a case of actionable negligence had not been made out. In the motion for a directed verdict counsel for defendant state precisely the grounds of their contention, and they are as follows: First. The undisputed evidence shows that in hoarding the train on the outside of the vestibule Graham acted not only in violation of the statutes of the State of Illinois, but without notice to, or knowledge on the part, of, the defendant. He was therefore a trespasser and only entitled to rights as such; Second. The evidence fails to show that
We have not overlooked the contention in argument of counsel for appellee to the effect that ITooyer and Newgren must have been taken into the train before the viaduct was reached because the space between the car and the girder of the viaduct was not sufficient to permit of the passage of a man standing on the car steps and clinging to the hand holds; that accordingly, and if the fact as to the location of the train was otherwise than as testified to by ITooyer, all three of the boys would have brushed off when the viaduct was reached. The trouble with this contention arises out of the proof. The distance between the extreme south edge of the ear step and the viaduct girder is shown to be eighteen and a fraction inches, while the vestibule door is set in six inches from the outer line of the car. There was then a clearance of fully two feet. TIooyer was a slender boy, and he says he kept his body close up to the vestibule door, while Newgren, a much larger man, was partially in-between the vestibule ends. Such 'being the facts, it was entirely possible for both to pass through without striking- against the girder. Such, then, is the state of the evidence. As it seems to us, consideration thereof from any point of view must lead to the conclusion that the train had reached the viaduct, and Graham had fallen to his death before any warning’ of his peril had been given. It must be manifest that at best the estimate of TIooyer as to the distance the
The contention of plaintiff here, as in the'court below,
The considerations expressed foregoing lead to the condlusion that the motion of defendant for a new trial should have been sustained, and the cause will be remanded that such may obtain.— Reversed.