174 Iowa 648 | Iowa | 1916
Was the evidence sufficient to take the case to the jury? The conductor, Christensen, and the engineer, Yan Lew, were called as witnesses for the plaintiff, and the ease depends largely upon their testimony. As to the description of the track, the switches, the curve, distances, etc., one Gaber gave testimony and produced a plat, blit his testimony showed that the plat was not correct. He afterwards made some corrections and then stated that it was correct, and the plat was admitted in evidence. But, take his testimony altogether, it is not very satisfactory as to the distances relied upon by the plaintiff, and the physical facts are such that, as to some of the measurements and distances given by this witness, his estimates or measurements cannot be correct. • His testimony will be referred to more in detail later in the opinion. N
Deceased evidently rode from Council Bluffs to the siding in question in the stock car, which was near the front end of the train. He was seen in this ear just before the train
One witness testifies that, if the engine is working right, under some conditions the passenger train would approach without making much noise, but his testimony is weakened somewhat on cross-examination. The passenger train in question was running 47 miles an hour. There is other testimony of plaintiff’s that there is a rumbling and jar to a fast moving train, and that this is perceptible for a considerable distance. Some of the plaintiff’s witnesses say that you could hear the noise of this train a quarter of a mile ahead of the engine. There is more noise made by a train when it is passing another train. The passenger engineer sounded a long blast of the whistle within a quarter of a mile of the east end of this siding. The other train was not puffing nor making any noise nor ringing the bell. It was a clear, sunshiny afternoon. There was nothing to prevent decedent from hearing the train if he had listened. His opportunity for seeing in the direction of the approaching train, if he had looked, was better than that of the engineer, looking in the other direction, to see deceased.
: Deceased was shipping the car from Faulkton, South Dakota, to Adair, Iowa. In the ear were seven horses and Other property. The contract, among other things, provided:
“That the second party (deceased) shall assume all risk and' expense of feeding, watering, bedding and otherwise caring for the live stock covered by this contract while in cars, yards, pens or elsewhere, and shall load and unload the same at his own expense and risk. . . . The person or persons in charge of live' stock covered by this contract shall remain seated in the caboose car attached to the train while the same is in motion, and whenever such person or persons shall leave the caboose car, or pass over or along the ears or track, they shall do so at their own risk of personal injury from every cause whatever, and that the said first*653 party shall not be required to stop or start its trains or caboose cars from depots or platforms, or to furnish, lights for the accommodation or safety of such persons. , .
As before stated, the conductor saw deceased in the stock ear as the train was leaving Council Bluffs, and did not request him to ride in the caboose. It is suggested that possibly the company waived the rule or provision of the contract by .npt requesting deceased to ride in the caboose instead of in the stock car, but there is no argument upon the point. . ,
We shall now refer briefly to the testimony of the witness Gaber, who made the measurements and the plat,- and state some further circumstances not already stated. He says that it is 350 feet from the east switch to the apex of the curve. He says that the track is straight from the west end of..the curve to the west end of the switch. On cross-examination, he said:
‘ ‘ I am not a civil engineer; never computed a curve to determine what a tangent is. The measurements were made with a steel seventy-foot tape. Plaintiff and Mr. Gwin, his attorney, were with me. Mr. Gwin assisted in making the measurements. I work in Mr. Gwin’s office. He sighted along the track and in that way determined where- the curve com-v menees. I don’t know just exactly where the curve commences. The east end of the curve is about ninety-six fe.et east of the block signal. I did not have a compass or a level. I just determined the point of the curve with my eye. .1 think the flag was set about a,t the west end of the curve. . I don’t know where the curve does begin on the east. I did not take any observation to see how far a. man could see around this curve when there was a train on the -passing track. I never observed from a ,cab to see what view, an engineer or fireman had around a train on this passing track.’.’
As stated, it is not entirely clear from the testimony as to the distances. The only point about it is that plaintiff claims .that the train could have been stopped- within about 400 feet, and the-thought is that the-engineer ..could .or should
The conductor testified, in addition to circumstances already set out, that, when they pulled in on the siding, they waited there only eight minutes when the passenger came along; that he said nothing to Mr. Oaks about meeting a train at this place. He says further:
“I don’t remember just how far it is between the passing tracks, but plenty of room for a man to walk between the trains; we did it right along; it is customary. I ran back and when I got to the man he was dead. The ground along the main line track is level. It is not usual to see stockmen along the trains at this siding. When I went to deceased, he had his cap down pretty well. It was a Scotch cap, pulled down pretty well over his head.”
The engineer testified, in addition to the facts already stated, that he saw the train on the siding; only saw the engine.
“Our orders would let us go right on through there. Gave no other signal when approaching the siding except the long whistle. The wind was blowing from the northwest. We were running from 45 to 47 miles an hour, which was customary going to sound the whistle there; but it is not usual and customary to sound the bell going past this siding. There are no road crossings there, and the closest crossing is about a quarter of a mile west of Chautauqua. If there is no train at the siding, you can see clear through there; no hills or trees or obstructions. We had a clear track through there, nothing to stop for. I did not have any reason to anticipate or believe anybody would be on the track there in*655 front of my train at that time and place, because I had never seen anybody there before.”
The witness who testified that, in his opinion, a train could be stopped within about 400 feet, was a locomotive engineer, but was not familiar with the operation of a train of the length and character of the passenger train in question and equipped as it was. But here, also, we should consider the evidence in the light most favorable to appellant.
In regard to giving additional signals, the appellant’s cases. are not in point, because they are dissimilar in their facts. No cases are cited of an accident occurring under the conditions shown here. The cases cited are where a train is passing a public crossing or approaching and passing stations and the like. There are duties devolving upon the engineer of a railway train in passing public crossings where people have the right to cross the track. There are also duties devolving upon him in approaching and passing stations and station houses where people can be expected to congregate; at such places trains must be operated with reference to such facts. But here the siding was in the country, about five miles from any town, two or three miles distant in one direction from any highway, and about half a mile in the other; fenced on both sides; no place to take on stock, or unload it, or water it; no place to take on or unload freight; no place for passengers to get on or off; no station house; simply a passing track. While the view of the siding was clear through there, but for the freight train on the siding, the engineer says that he did not see deceased; and, because of the freight train on the siding and the obstruction of the front end of the engine on the curve, we are satisfied that the engineer could not have seen
In view of our holding later in the opinion that deceased was guilty of contributory negligence, we deem it unnecessary to discuss the question of the alleged negligence in the first place, of defendant. It will be referred to briefly in connection with the claim that the doctrine of the last clear chance, applies.
It has been held many times that one walking on railroad tracks without looking for trains is guilty of contributory negligence as a matter of law. Baker v. Chicago, R. I. & P. R. Co., 95 Iowa 163; Bryson v. Chicago, B. & Q. R. Co., 89 Iowa 677; Missouri Pac. R. Co. v. Moseley, 57 Fed. 921 (6 C. C. A. 641); Elliott v. Chicago, M. & St. P. R. Co., 150 U. S. 245; Kansas City, etc., R. Co. v. Cook, 13 C. C. A. 364 (28 L. R. A. 181); Southern Pac. R. Co. v. Pool, 160 U. S. 438; Garlich v. Northern Pac. R. Co., 131 Fed. 837 (67 C. C. A. 237);
Under the evidence in this case, if deceased were alive and had testified that he looked and listened for the passenger train, his testimony would not raise a conflict, because it is clear that he could have seen and'heard, had he been paying attention. Bloomfield v. Burlington & Western R. Co., 74 Iowa 607; Reeves v. Dubuque & S. C. R. Co., 92 Iowa 32; Powers v. Iowa Cent. R. Co., 157 Iowa 347; Payne v. Chicago & N. W. R. Co., 108 Iowa 188; McLeod v. Chicago & N. W. R. Co., 125 Iowa 270; Artz v. Chicago, R. I. & P. R. Co., 34 Iowa 153.
The difference between this case and cases where it was held that there was a jury question is well illustrated by Christensen v. Illinois Cent. R. Co., 140 Iowa 345, upon which appellant relies. There the injured man saw the engine standing still; there the accident occurred in town, in a yard, where
“One who is on or near a railroad track for a proper purpose cannot be required, as a matter of law, to be constantly looking; that is, to be looking at every instant of time for the approach of engines and cars. Having advised himself by proper observation of his surroundings and the sources of probable danger, he may proceed with the reasonable belief that the railroad employees will perform their duty as to his safety.”
Here, if he looked, he must have seen the train rapidly approaching him. The freight train upon which deceased had been riding had pulled in on the siding for the purpose of allowing a train to pass. While it is not shown that deceased knew this, still there is nothing from the appearances to show that his train was on the siding for any other purpose. The main line track close to his train was notice to him that trains were likely to pass. He was a young man in the full possession of his senses. It was in the middle of a sunshiny, bright, winter afternoon. There was room enough for him to walk between the passenger track and the track upon which the freight train was standing, had he exercised care.
The case of Hart v. Northern Pac. R. Co., supra, is closely in point. That was a drover’s case, where decedent, traveling on a drover’s pass, accompanying his cattle, at night walked some distance in the space between the main line and the side track of a railroad, going from the passenger station to the yard office, and where he had been warned that a passenger train was due to pass at any time; and, although there was a safe way in plain view on the opposite side of the main line, he continued to walk in the space between the main line and the side track, with his back to the approaching
In the case of Garlich v. Northern Pac. R. Co., supra, a man was walking close to a track in the space between the railroad tracks and the river .bank, which was used as a pathway. The plaintiff was walking at a safe distance from the track until just before he was struck, when he made a side-step towards the track; and it was held that he was guilty of contributory negligence.
In Kaiser v. Northern P. R. Co., supra, the facts are somewhat similar to those in the case at bar. As plaintiff walked through a railroad yard to take a train, he observed an engine some 200 or 300 feet in the rear, approaching at a speed of six or eight miles an hour. They left the track along which they were walking, crossed over two or three others, and continued their course opposite one of the latter tracks. The engine also switched over to that track, and plaintiff was struck and injured by it. He had not looked again. It was a clear morning, and there were no obstructions to the view. It was there held that plaintiff was negligent as a matter of law and could not recover.
‘ ‘ Importance is attached to the fact that the natural instincts for self-preservation, of which the jury could take notice, would have led to the exercise of care on the part of Mitchell. It was proper for the jury to consider that fact, and, as we have said, .direct or positive evidence is not required to show an absence of negligence. If it may be inferred from all the evidence in the*660 case, it is sufficient. The rule in this respect is noticed in Greenleaf v. Railroad Co., 29 Iowa 14; Way v. Railroad Co., 40 Iowa 345; Burns v. Railroad Co., 69 Iowa 456; and Hopkinson v. Knapp & Spaulding Co., 92 Iowa 328. We are not disposed to deny to plaintiff the benefit of the rule as repeatedly announced, and we affirm the repeated application of it. In each of these cases the injury happened when the person was engaged in the line of employment, and in some, if not all of them, his conduct is traced so closely to the accident that from it, aided by a presumption that arises from a natural disposition to avoid injury, the fact of diligence could well be found. That is not the situation of this case. All that can be assumed in this case is that Mitchell was doing what he was when Underwood saw him, and that is, walking homeward. It will not do to say that one can go upon a railway track without having a duty there, and if, while walking, he is struck by a train, the jury may assume from the instincts of self-preservation alone that he was diligent.”
The same duty devolved upon deceased in the instant ease, in walking so close to the track that he would be struck by an engine, as though he had been walking on the track.
Without pursuing the subject further, we think it is clear that in the instant case deceased was guilty of contributory negligence.
It is thought by appellant that deceased was placed in an emergency. But when did the emergency arise? Clearly, there was no emergency while deceased was walking between the tracks, with room enough to walk, or until the passenger train was upon him. If there was any emergency, it was after the train was upon deceased; and there is no claim, and could not be, that then the .engineer could have done anything to prevent the injury. A train going 47 miles an hour, as this train was, would travel 69 feet a second, and it would
The negligence of the decedent continued right up to the time of the injury. There is no showing that he was in a place of danger for any appreciable length of time before the train struck him. As bearing .upon this question, see Doherty v. Des Moines C. R. Co., 137 Iowa 358; Chabott v. Grand Trunk R. Co., (N. H.) 88 Atl. 995.
From what has been said, it is our. conclusion that there was no case for the jury; and, had a verdict been returned for plaintiff, it would not be. permitted to stand. The judgment of the district court is therefore — Affirmed.
