73 Iowa 268 | Iowa | 1887
Counsel for the appellant, in argument, concede that the contributory negligence of the persons in charge of the team is the material issue in the case, yet it is claimed, that the court erred in the admission or rejection of evidence which had little, if any, bearing on such question, or upon the merits of the controversy. Nevertheless, we shall briefly consider them, for the reason that counsel seem to believe that the rulings of the court in the respects mentioned constitute prejudicial error.
VII. The twenty-second paragraph of the charge is objected to, but it is in substance the same as an instruction in Correll v. Burlington, C. R. & M. R’y Co., 38 Iowa, 120, which was approved by this court.
Counsel for the defendant take exceptions to the portion of the foregoing instructions referring to the time a person enters into the limits of actual danger. It is not entirely clear what the court meant, or the jury must have understood, were the “ limits of actual danger;” but, taking the instructions all together, our conclusion is that the meaning of the court included the approach to the track. We are inclined to think that, ordinarily, a person would not be in actual danger from an approaching train until he was on the railroad track; but clearly the court did not mean this, and that from such time only he was required to exercise ordinary-care. The court must have meant that the limits of actual danger included the time when, and the place where, it became his duty to look'and listen for an approaching train; and, taking the instructions together, we think they are correct, and that the defendant was in no respect prejudiced by the portion objected to.
Farrington testifies that when he was at the Rock Island crossing he “ looked particularly for a train both ways [that is, both east and west] on the defendant’s road. After you cross the Rock Island, you cannot see much of the defendant’s road, for the ‘Cutlery’ shuts off the view on one side, and some shanties on the other. * * * After passing the ‘ Cutlery,’ I looked west for a train. There are trains coming all times, and I didn’t know what time it was. I looked west, then east. Saw the train just as _ Switzer spoke. There was no reason why I looked west first. He said, ‘ My God! Tom, there is a train right on us!’ and I pulled up on the lines. The horses had got their fore feet on the first rail. I saw the train was on me, and I had no time to do anything but jump. When I first saw the train it must have been within twenty feet of the horses.”
Switzer testifies that when they were on the Rock Island crossing lie looked “ towards town to see whether the train
The evidence tended to show that from the time the team passed the Bock Island crossing the horses walked to the place of the accident, and that it took about fifteen seconds to travel such distance. There was a conflict in the evidence as to whether the bell was ringing, and the evidence tended to show that it was usually rung when approaching the crossing. The evidence as to the speed of the train was conflicting, but it was from about 20 to 30 miles an hour, and the jury would have been warranted in finding in favor of one or the other.
The engineer testified: ££ I was about 180 or 200 feet from Tisdale street crossing when I first saw the team. It was approaching the crossing, coming, from behind the cutlery building. Just could see their necks and heads. Yery frequently they come within ten or fifteen feet, and then stop, so I was not doing anything towards stopping the engine. When they got about that distance from the railroad, I saw they were not going to stop, so I gave the alarm signal with the whistle.”
We have stated the facts fully, for the reason that the defendant insists that the plaintiff cannot recover, because his employes were guilty cf contributory negligence; and it must be admitted that this question is not free from doubt, for the reason that when a person approaches a known railroad crossing in the day time, and there are no complicating circumstances, it is difficult to see why, with a fair degree of diligence, he cannot avoid a collision with a train passing along the railroad. Counsel for the defendant insist that it
The question to be determined is whether, under the facts above stated, the employes of the plaintiff were, as a mattei of law, guilty of contributory negligence. In discussing this question, it must be conceded that such employes looked for a train at the Eock Island crossing, and failed to see it, and that they did not stop and listen at any time. It must alsc be conceded that it required fifteen seconds to pass from there to the place of the accident, which they did not approach recklessly, but in a proper and careful manner. It must alsc be conceded that when the horses’ heads came within view of the engineer the train was about 200 feet distant, and it was nearer than that when the wagon had so far progressed in the direction of the crossing as to permit persons in charge of the team to see the train. It does not appear how long the train was, but, as the persons in charge of the team could not see it at the Eock Island crossing, it is probably true that the view of the train was cut off by the ‘‘Cutlery,” or that it was not then within sight. At the speed at which the train was running, it would require about eight seconds for it to get to the point where it could be seen when the cutlery works had been passed, if it was behind the “ Cutlery” when the team was at the Eock Island crossing, and about three seconds from there to the crossing. The persons in charge of the team saw the train when they had passed such works, but it was then too late to avoid the accident. It is