132 Iowa 582 | Iowa | 1906
— The testimony on part of plaintiff tended to show that at a point near the plaintiff’s residence a public road intersected the defendant’s right of way, but by reason of the excavation for the railway travel on the highway at this point was interrupted. To accommodate the travel until an appropriate highway crossing should be constructed, persons using that route were permitted to depart therefrom, and drive along the right of way to the north to a point in the neighboring field where a crossing over the track had been provided, and by that route reach the other side of the railway. Whether this crossing was a temporary expedient, adopted by the defendant for use while the regular public crossing was impassable, or was constructed as a private crossing for the benefit of the adjacent landowners, is not quite clear in the record. It appears, also, that from the point where travel was diverted from the public road to the crossing in the field the railway passes through a deep cut, and a person driving a team along the path at the top of tfie cut cannot see trains approaching from the south, but by going to the brink of the cut a view of the track for a considerable distance may be obtained. The evidence of the witnesses is also to the clear effect that for a long time it had been the custom and practice of the defendant’s engine-men to sound the whistle on approaching this crossing from the south.
On the day in question plaintiff’s servant, a man thirty-five years old,' and of- considerable experience in handling horses, was driving a team attached to a wagon loaded with three cans of milk in the direction of a creamery located on the opposite side of the railway. Turning in upon the right of way on the east side of the track he drove along the route to the north which we have just described. He testified that,
Some other questions have been argued by counsel, but in so far as they fairly arise on the record before us they are governed by the conclusions already announced.
For the reasons stated, a new trial must be ordered, and the’judgment of the district court is therefore reversed.