103 Iowa 282 | Iowa | 1897
I. Robert Keatley, the decedent, was killed on October 24, 1890, near bridge 26 on the defendant company’s railroad, by reason of a freight car on said road leaving the track and falling on him. At the time of the accident, the defendant company was engaged in building an iron bridge over a creek, in place of a wooden one, which had been removed. This bridge was seventy-one feet long, and its ends rested on stone abutments. On the day mentioned, there were two* gangs of men at work, one working erecting the bridge, and known as the “iron gang,” of which one Mantz was foreman, and the other known as the “stone gang,” with one Egan as foreman. The latter gang were not working on the bridge or its abutments, but were engaged in building a retaining wall from the north end of the east abutment of the bridge, eastwardly, along the north line of the right of way. The iron gang were at work finishing the superstructure of the bridge, and expected to complete it the following day. The bridge was on the main line of the defendant’s railway, and, while it was being erected, the traffic
The negligence charged is “that, at the time, the bridge was but partially completed; that its ends were resting on abutments about seventy feet apart: that it was not supported or held in place by guys, rods, or other supports; that the rails, of the track crossing the same were not securely spiked to the ties, but were, negligently and carelessly allowed to lie in a loose, unspiked, and insecure' condition for the passage of trains thereon; that said bridge, in its unfinished and insecure condition, with the loose and unfastened rails thereon,
II. This is the second appeal in this case. The opinion in the former hearing will be found in 94 Iowa, 685. On the last trial the court instructed the jury that the foreman of the stone gang was not guilty of negligence, and that the engineer and other employes in charge of the freight train were not guilty of any negligence. In the sixth instruction given to the jury, the court charged as follows: “The decedent, Robert Keatley, was, at the time of the accident and injury complained of, upon the derrick platform, in the line and discharge of his duty, under the direction of the foreman of the gang with which he was employed; and if you find from the evidence and under these instructions that the foreman of the iron gang negligently permitted a train to run at a dangerous rate of speed, upon an unfinished, insecure, or unsafe bridge, by reason of which the cars left the track, and caused the death of deceased, then, under the statute of this state, the defendant is liable herein.” In the eleventh instruction given to the jury, the court charged: “If the bridge in question, including the rails and ties, was in such a condition, or stage of completion that ordinary care and prudence demanded that trains should be operated in, approaching and crossing said bridge at a slow rate of speed, then it was
Now, the evidence was conflicting as to the condition of the bridge at the time of the accident, and especially so as to the distance between the ties; some of the evidence showing that in some places they were several feet apart, and other evidence showing that the distance was proper. There was evidence as to what was necessary to complete the bridge; and the evidenee'of defendant in this case showed that some of the ties had been taken out before this accident; that, of the remaining ties, every other one was spiked; and that such spikes were loose enough to permit the ties to be moved back and forth. Whether the bridge was in such a condition as to be safe for trains to cross at the rate of speed attained by this train, which killed Keatley, was a question for the jury, under all of the evidence. Failure to flag the train is now pleaded as negligence, and the evidence is ample to show that the foreman of the iron gang was furnished with a slow flag, and that it was his duty to use it in case the bridge was not safe. Whether he was negligent in that respect was a matter properly submitted to the jury. They must have found that the condition of the bridge was such as to have required the train to be flagged, and that the foreman of the iron gang was negligent in failing so to do; and the verdict has such support in the evidence that we should not disturb it. In view of what we have said, the court did not err in refusing to instruct the jury that plaintiff could not recover.