143 Iowa 268 | Iowa | 1909
Plaintiff’s intestate, F. M. Gray, was killed by a passing train upon a highway crossing of the defendant’s railway. This action, is brought to recover the. resulting damages to his estate on the theory that defendant was negligent in failing to give the proper crossing signals, in the rate of speed at which the train was moving, in failing to use ordinary oare to see the deceased or to know of his approach to the track, and in neglecting to place a whistling post or other suitable sign to indicate to the engineman the proper place for giving the crossing signals. The answer denied generally all the allegations of the petition. At the point where the accident occurred, the course of the railroad extends from the southeast for some distance in a northwesterly direction. The highway from the north and the railway from the northwest approach each other at a ¡«omewhat acute angle. A short distance before reaching a point where these lines would intersect, the highway deflects to the southwest and crosses'the railway very nearly at a right angle. .To a traveler moving from the north and approaching the crossing the view of the railroad was obstructed by cuts, buildings and trees; but the extent and completeness of such obstruction are subjects of dispute in testimony. 'On the morning mf April 26, 1907, the deceased, driving along this route alone in an ordinary single top buggy, was struck upon the crossing by a train from the northwest. This brief outline is probably sufficient to afford an idea of the general situation and enable the reader to understand the bearing of the testimony to which we shall hereinafter refer.
The fact that deceased was driving his horses at a trot when last seen by Mrs. Duple has little or no tendency to show that he continued to drive at that rate until he collided with the train. Counsel seem to draw the conclusion that, according to this witness, deceased was in her sight until he reached about twenty-one or twenty-three feet from the track; but this is incorrect. She claims to have seen him until just as he passed a line between her and a certain pole on the right of way near the track. That pole, according to the witnesses, stood west of the highway and twenty-one feet from the north rail; but, measuring from the pole to the plank crossing where deceased was struck, it was about thirty-eight feet. Moreover, the line of observation from the position occupied by the witness to the pole was.not parallel with the course of the track, but diverged therefrom over four hundred feet, and it may well be that the deceased would pass her line of sight in the direction of the pole substantially at the distance from the crossing which is testified to by the engineer, or fifty-five feet. In this distance there was ample time for him to have brought his horses to a walk, or to have stopped them, or to have looked and listened for approaching trains. We can not presume' that he did not use the rea
The defendant’s fireman did not see the deceased at all until after the accident. The engineer did not see him, but caught a glimpse of the team and buggy just at the instant of collision. From the time he left the view of Mrs. Duple no witness claims to have seen the intestate until his body was found in the ruins of the carriage, nor is there the slightest direct evidence of what he did or failed to do by way of precaution as he approached the crossing. Under similar circumstances, in the Dalton case, supra, we said: “It can not be questioned that, in going upon the crossing when he did, ordinary care required that-deceased should have stopped, looked and listened to know if a train was approaching. It is a recognized rule of human conduct .that persons in their sober senses naturally and' instinctively seek to avoid danger. Therefore it must be presumed, until the contrary appears, that the deceased, prompted by this natural instinct, did exercise care in approaching and going on that crossing. . . . "Whether the circumstances are such as to overcome the presumption that deceased, prompted by the instinct of self-preservation, did exercise the care required by him, was a question for the jury.” See, to the same effect: Hendrickson v. Railroad Co., 49 Minn. 245 (51 N. W. 1044, 16 L. R. A. 261, 32 Am. St. Rep. 540); Mynning v. Railroad Co., 64 Mich. 93 (31 N. W. 147, 8 Am. St.
The Hendrickson case is not unlike the one at bar in material respécts. The deceased was seen to drive in the direction of the crossing and enter upon the right of way, was seen again by the engineer just the instant before the collision; but there was an entire absence of proof whether he stopped, looked and listened. The court there said: “A plaintiff administrator is not required in all cases of this character to prove affirmatively that his intestate looked or listened. It may be inferred, in view of the circumstances, that the deceased, governed by the instinct of self-preservation, did what a prudent man would ordinarily do to save his'life.” See, also, Railroad Co. v. Weber, 76 Pa. 157 (18 Am. Rep. 407) and Schum v. Railroad Co., 107 Pa. 12 (52 Am. Rep. 468). If the presumption to which we have referred is ever to obtain, it would be difficult to frame a more typical case calling for its indulgence than is here presented. The fact that there are living witnesses who can testify to facts, shortly before or shortly after the accident does not interfere with the application of the rule. In Phinney v. Railroad Co., 122 Iowa, 492, a surviving witness was standing by the deceased when he fell from the car, and in Lunde v. Cudahy, 139 Iowa, 688, another person was in the same room when deceased fell into the wheel pit; but as neither saw what care, if any, the deceased exercised for his own safety, it was held in each instance that the administrator was entitled to the benefit of the presumption. The presumption is, of course, one of fact, and it becomes, as we have seen, a question for the jury whether the presumption is overcome by other facts and circumstances appearing in evidence. There was no error in refusing to direct a verdict.
Errors assigned but not referred to in this opinion relate to questions which are controlled by the conclusions
The judgment of the trial court is reversed.