93 Iowa 484 | Iowa | 1895
At the time of the injury the plaintiff was driving a horse and wagon, delivering goods to the customers of a tea company. The wagon was what is known as a “covered delivery wagon.” He drove the
II. It is urged in behalf of appellee that the question of the removal of the trial to the street is not involved in the appeal, because the court directed a verdict for the defendant on the evidence introduced by the plaintiff, without any consideration of that part of the trial which occurred in the streets; and that by the 'evidence introduced in plaintiff’s behalf the court rightly decided, as matter of law, that the plaintiff, was guilty of such negligence in driving on the railroad track as precluded recovery. Of course, it never can be known how far the trial judge was unconsciously influenced by the proceedings referred to, and on the record here presented we are not prepared to hold’ that the order directing a verdict was authorized. The evi; deuce shows that the engine was run a-cross a public street at a rate of speed from twenty to thirty miles an hour in violation of an ordinance of the city limiting the moving of trains at a rate to exceed six miles an hour. The result of the collision shows that the speed was excessive. The engine was observed by persons before it reached the crossing. One witness testified that he was fifteen or twenty feet from the engine when it passed him, and that it threw gravel on him as it passed. The only warning given of its approach was the noise made by its high rate of speed. There was no ringing of the bell or sounding of the whistle. Under this state of facts we prefer not to determine the question whether the plaintiff exercised proper care to avoid a collision. We think it will be time enough to decide that question when there has been an appeal taken from a judgment upon a verdict founded upon the evidence given in open court The judgment of the District Court is reversed.