146 Iowa 17 | Iowa | 1909
The plaintiff received a consignment of steers shipped over defendant’s road to the town of Cranston in Muscatine County. The cattle, forty-seven in number, were safely unloaded at the station and taken in charge by plaintiff’s two sons, who undertook to drive them to the .feedyards at their home. Their route took them along a highway running directly west from the station and immediately north of the track and parallel thereto for a distance of about' one hundred and twenty rods, where it opened into another highway extending north to plaintiff’s yards and south across the railway. In getting the cattle started west they had became scattered or “strung out” to a considerable distance along the road, so that, when the young men had brought the rear of the herd about half the distance to the comer, several head of steers had reached the corner, and some of them had turned south and over the railway crossing. About the same time the drivers discovered the smoke of an engine apparently a half mile to the east and moving west, whereupon one of them, being mounted upon a horse, started down the track at a rapid pace to reach the crossing ahead of the engine and prevent a collision there if possible; but the speed of the engine, which did not stop at the station, was such that he was unable to accomplish his purpose. The engine passed him and collided with several of the cattle, killing two and injuring a third, and this action was brought to recover.damages, on the theory that the accident was the result of the defendant’s want of reasonable care in the premises. The charge of negligence in the petition is based: First, on the act of the engineer in operating the engine at more than eight.miles an hour on the station grounds in violation of the statute; and, second, that before plaintiff had reasonable time to get his cattle clear from the uninclosed station grounds the approach of said engine at such excessive speed and the sounding of its whistle frightened the cattle, causing some of them to go upon the track. .He further alleges
There was no motion to direct a verdict; but on request of tbe defendant tbe court gave tbe jury five instructions, as follows:
(1) Tbe fact tbe cattle in question’ bad arrived at tbe station over tbe road of defendant is entirely immaterial upon tbe question of defendant’s liability. The situation is no different from what it would have been bad plaintiff’s sons been driving tbe cattle along tbe same road which bad not been shipped, over defendant’s railway. (2) Defendant is not to be found guilty of negligence because of tbe speed with which tbe train approached tbe crossing, unless the employees saw, or in tbe exercise of ordinary care .should bave seen, indications which should bave caused a reasonably prudent. man to anticipate that a part of tbe drove of cattle were likely to attempt to cross tbe railroad track, and to be struck by tbe train. In tbe absence of any such indications of danger, tbe engineer would have tbe right to pass over tbe crossing at any rate of speed consistent with tbe safety of tbe train. (3) Even if you believe from tbe evidence that defendant’s employees saw, or in the exercise of ordinary .care should bave seen, a number of cattle at or in tbe immediate vicinity • of tbe point where tbe east and west highway joins tbe north and south highway, still, under tbe evidence in this case, that fact would not require of tbe engineer that be stop or slacken tbe speed of the engine, unless there was something in tbe conduct or- appearance of the animals to indicate to an ordinarily cautious and prudent man that they would be likely to get upon tbe track and become injured. Tbe engineer would not be boqnd to assume, because tbe cattle may have been seen at the corner, that there might be other cattle between tbe comer and tbe track and out of bis sight, and to stop or slacken tbe speed of tbe train to avoid tbe danger of striking cattle which might be out of
Two other instructions were asked on the law relating to contributory negligence and refused. In charging the jury on its own motion the court did not instruct upon the question of contributory negligence, but on the question of defendant’s negligence said that the burden was on plaintiff to show that the engineer knew, or by the exercise' of reasonable care would have discovered that the cattle were likely to enter upon the crossing and be injured by the engine, and knew, or in the exercise of reasonable care ought to have discovered, such peril in time to have reduced his speed and avoided the injury, then defendant .was liable; but if such facts had not been established by the evidence the plaintiff could not recover. This thought was repeated in various forms of expression, among which we quote the following paragraph as stating the sum and effect of the charge in the words of the court: “(5) It is for you to say from the evidence within what distance the said engineer, exercising reasonable care and prudence with the means at hand, would have stopped or slackened the speed of his engine, sufficient to have avoided such injuries. If you fail to find that such engineer discovered, or should have discovered, the danger of injuring such cattle in time to have avoided such injury, if making rea
The argument of appellant in this court is directed to two propositions, to which we shall refer.
No prejudicial error has been pointed out, and for the reasons stated the judgment of the district court is affirmedJ