156 Iowa 457 | Iowa | 1912
While in the act of walking across the defendant’s track at a public crossing in the city of Davenport, Hartwig Stender was struck and killed by a moving train. This collision, the plaintiff, who is administrator of Stender’s estate, avers was caused by the negligence of the defendant in operating ' its train at a .high rate of speed in violation of an existing city ordinance, in failing to sound proper signals, or give proper warnings of the train’s
The flagman’s testimony as to his own position at the time' was not obtained. One witness thinks he saw him swinging his lantern at the middle of the crossing, but another swears that he himself was at that moment talking with him on the east side of Warren street, and that the flagman was facing to the east. The engineer in charge of the train says that, when east of the flagman’s cabin from ten to twenty-five feet, he saw the deceased, and hesitated an instant about checking the speed,. thinking the traveler would not -walk into a collision, but almost immediately,
There was testimony also, though disputed, that the engine was being operated without signals by bell or whistle until immediately before the deceased was struck. It carried a headlight illuminating the track to a distance of a thousand feet or more. No one was walking with deceased, but several persons were within seeing distance. He appears to have entered upon the street crossing and failed to note the dangerous proximity of tlie train until very close to the instant of collision. If he stopped at any place to look or listen, no one observed the act. Wo find no evidence that any one saw him before he left the curb, and no witness is able to say whether he did or did not look to the east for approaching trains before he entered upon the crossing of Warren street. Defendant admits that on the evidence offered the jury could properly find there was negligence in the speed of the train. It- also concedes that the questioh whether proper signals were given is a matter upon which there is a conflict of evidence; but counsel argue that, even if such negligence be -found, it was not the proximate cause of the collision, but that such cause is to be found in the negligent act of the deceased himself in recklessly walking into danger.
Stated -in other words, the chief contention on behalf of appellant is that deceased was chargeable with contributory negligence as a matter of law. The rule which makes a party negligently injured bear all the loss suffered by him, if as a matter of fact he is chargeable with any part of the blame, is, of course, too well settled in the law
Indeed, giving effect to the law of the Cases here cited, and of numerous other precedents to the same point, every fact contended for by the appellant as to the conduct of the deceased may be conceded without making the case one for a directed verdict on the ground of contributory negligence. It stands conceded that there was evidence of neglect in the matter of the speed of the train and of the omission of the statutory signals. It is also conceded that the gates were not in use, and that a flagman had been provided. There is also conflict in the evidence as to whether the flagman was giving attention to his duty as the train approached.
In the French case, supra, where a person relying upon the absence of signals undertook to make the crossing without looking for the train at a place where she might have seen it, it was held that the question of contributory negligence was for the jury. A similar rule was applied by the Ohio court in the Schneider case, above cited. In Railroad Co. v. Stegemeier, supra, it was held by the Indiana court that an open gate and absence of a flagman constituted such an affirmative assurance of safety that a traveler could not be charged with negligence as a matter of law because he undertook to make , the crossing without
There is no evidence in the record tending to show that deceased did not look for trains before leaving the Fifth street curb. Whether there be any presumption that he did so we need not consider. To say the least, there is no presumption that he did not look. If he did look, and saw or ought to have seen the train, he was not necessarily negligent in attempting to cross; for, under the evidence as to its speed, it must have then been at such distance that, had the ordinance of the city been observed, he would have cleared the track in ample timé to avoid the collision.- There is no proof that he knew or could readily have noted the speed of the train’s approach, and, as we have already said, he could rightfully assume that it was not excessive. Even as it was, he was within a single step or two of safety when struck, and the evidence clearly justifies a- finding that, had the train been moving within the ordinance limit, he had abundant time to cross. Under essentially similar circumstances, we have held that a traveler thus injured is not guilty of contributory negligence as a matter of law. Powers v. Railroad Co., 143 Iowa, 432.
There was no error, then, in the refusal of the trial court to' set aside the verdict on that ground.
The court instructed the jury with reference to the so-called dodtrine of the “last fair chance.” The contention for appellant in this respect is that there was no evidence on which such an instruction could properly be pred
There is no error in the record requiring a new trial, and the judgment of the district court is — Affirmed.