99 Iowa 735 | Iowa | 1891
In Worden v.H. & S. Ry. Co., 76 Iowa, 314, this same work was held to be admissible, without preliminary proofs under section 3653 of the Code.
In Gorman v. The M. & St. L. Ry. Co., 78 Iowa, 509, cited by appellant, a different work was offered, after preliminary proofs had been made, which this court held to be sufficient.
There was no error in overruling the objection.
III. Other errors assigned and discussed, involve a consideration of the facts about which there is but little conflict, and which are substantially as follows:
The defendant’s track runs north and south through the incorporated town of Mondamin, trains from the south being in full view for one mile. There was a water tank north of the depot and one or more side-tracks that connected with the main track, at points north and south of the station house.
The train under notice had uniformly carried a cupola caboose in the rear of the freight cars and, at and for a month before the accident, had carried a passenger car in rear of that. At the time of the accident, and for a number of years before, plaintiff was in defendant’s employ as a section foreman and had charge of a section from a point south of and through the town to a point north of it. He resided near to and in full view of the tracks at the station, and was frequently there when this train passed. . On July 10, 1889, he and his men were at work at and near the switch stand south of the depot between 10 and 11 a. m., when this train approached from the south. Plaintiff was engaged in making some repair on the switch, at the point of connection with the main track, which required him to go upon the main track. Some distance south of the south switch, a brakeman, knowing that there were cars to set out and passengers and freight to discharge, cut the train in two without any immediate order to do so, leaving nine freight cars attached to the engine, and five loaded freight cars, the caboose and passenger car to follow. Plaintiff saw the train approaching when about one mile away, and as the engine and cars attached approached the switch where he was at work, he and the other men on the track stepped off. Immediately after the engine and cars attached to it had passed, the plaintiff, without looking south, stepped upon the track with his face from the south and was examining the track when he was struck by the advance car of .the rear section of the train and injured.
It is unquestionably true that when the first part of the train passed, plaintiff supposed it was the entire train, and, acting upon that belief, went upon the track as he did. There is conflict as to how the brakeman managed the rear part of the train. The brakeman testifies that when the train was cut in two, he was on the front end of the rear section, and set the brake to slow the cars. That he was about six feet from the front end of the car when he saw Haden beside the switch, off the track on the east side, looking down at the track. “He started to go on ahead of these cars, and as he went on I hallooed * * * and started for another brake, and just as I got to another brake I saw him fall. I was about the length of a car and a half from him when I called out to him.” The witnesses all agreed that the brakeman was at the brake on the front end of the first car, and that he hallooed to Haden, but they differ somewhat as to the distance the car was from Haden at the time. One witness says that he thinks it was not over thirty or forty feet, another says the brakeman did not run back on the car. There was no occasion for hallooing until Haden stepped on the track, and as this was evidently but a few moments before he was struck, the time and distance between the warning and accident was short.
IY. We now inquire whether there is any evidence tending to establish the charge of negligence on the part of defendant’s employes. The charge is that
There is no testimony whatever tending to show that it was negligence to cut the train, or to permit the' rear section to follow the one in advance, at the speed it did. All the witnesses testifying on that subject say that it is a usual way of handling such trains, and no witness says differently, or that the cars were moving at an unreasonable rate of speed. The only possible inference of negligence in cutting and moving the train as it was, must be drawn from the fact that plaintiff was injured, and yet we know that persons are injured by moving trains when there is no negligence in the management. Negligence cannot be inferred from the fact of the accident alone. There is no question, but that the brakeman hallooed to plaintiff as soon as he stepped upon the track, and it does not appear that he had any other means of giving him warning. There was no reason to expect he would step upon the track, or to warn him sooner. That the front brake was set and that the brakeman was at that brake before and at the time plaintiff stepped upon the track, is unquestioned.
The only means the brakeman had of stopping the car was to go to and set the nearest other brake, which was at least a car-length away. This, he says, he tried to do, but plaintiff was struck before he had time to do so. One witness says he did not run back on the car. Be this as it may, it is evident beyond question that there was not time in which to go to the other brake and set it, much less to stop the cars, between the time the plaintiff stepped upon the track and the time he was struck. The distance between
The case is unlike Farley v. C., R. I. & P. R. R. Co., 56 Iowa, 337. In that case a'train had broken in two out on the line between stations, and the plaintiff, who had been sent to watch and signal the approach of the train to the section men,_ not observing that the train was broken in two, started along
If going upon the track, when and as he did, was negligence on his part, such as to charge the company for injury to another, resulting therefrom, it was surely negligence such as to defeat his right to recover for injuries sustained in consequence of it.
We think that but one conclusion, on the questions of negligence can be arrived at from the testimony, and that is that it establishes, without conflict, contributory negligence on the part of plaintiff, and does not tend to show negligence on the part of defendant. '
We think the court erred in refusing the instruction asked and in overruling defendant’s motion for new trial. As this view fully disposes of the case, we do not mention other questions discussed. — Reversed.