93 Iowa 628 | Iowa | 1895
I. Plaintiff is the husband of Nettie Ochiltree. It appears that on the morning of August 27, 1889, plaintiff’s wife started to drive to the town of Audubon, and had with her another lady and two small children. She drove a span of horses which were hitched to an open, two-seaited buggy. The following
ÜDe of the horses was seventeen years old, and the other was twenty-one years old. In leaving her home, and going to the town, Mrs. Ochiltree would travel east to a point nearly opposite the whistling post, and then turn south, crossing the railroad track at a point opposite the gate indicated upon the plat, and continue south into Audubon. After she had turned south, and gone a short distance, and was probably south of the bridge, her companion discovered that a train was coming from the north on defendant’s track. It was then near the whistling post. Mrs. Ochiltree whipped up her horses with a view of reaching the gate in advance of the train, and turning into the field west of the track. She did go' south, and turned into the field through the gate, went west a short distance, and turned north, when the horses became unmanageable, and she and the other occupants of the vehicle were thrown out, and she was severely and permanently
II. The appellant contends that the court erred in its charge to the jury, and especially in the seventh division thereof. To> the end that the trial court’s views of the law as given to the jury may be fully understood, it becomes necessary to' refer to, and set out at some length, portions of the charge relating to the matter complained of, and which must be considered in determining the correctness of the law as given by the trial court to the jury. In the third instruction the
The argument in this case seems to be biased upon tbe theory that there were two blasts of the whistle blown near the crossing; and appellant contends that, conceding that they were blown as a signal to the trainmen to release brakes, defendant had no light so to -do under the circumstances. Plaintiff’s contention is, as we understand it, that it was negligence, as a matter of law, to give the signals when the team, was, as he admits, from one hundred and fifty to two hundred feet from tire train; that defendant owed a duty to travelers on the highway to know that they were there, and to exercise reasonable care to prevent frightening their teams; that the fact that horses are likely to' be frightened by the blowing of a whistle is a matter of common observation, and which the engineer must be presumed to know; and that he must be upon the watch for teams upon the highway, and, if they be so near the train as to he within the hearing of the sound of the whistle, then, in the exercise of ordinary care, the engineer must refrain from blowing the Whistle, except in cases of danger, until the team has passed beyond the hearing of the whistle. So far as this case is concerned, it is ■ of no' moment as to' what, the rule may be as to the exercise of care by defendant towards teams upon the highway, as to which defendant or its trainmen may have no notice or knowledge, as the
We think the instructions, taken a,s a whole, are quite as favorable to plaintiff as he could expect, and that the doctrine announced in them hais the support of the weight of authority in this country. In Hart v. Railroad Co., 56 Iowa, 166, 7 N. W. Rep. 9, and 9 N. W. Rep. 116, plaintiff attempted to drive over the railway track on a highway about fifteen feet in front of an engine, and, as his horses were opposite the engine, its drip, cocks and valves were opened, and the steam and water escaping therefrom made a loud noise, frightening plaintiff’s hozases, and causing them to run away, overturning his buggy, and injuring him. It was there held that, if the noise was likely to be attended with danger, then it was the defendant’s duty to exercise reasonable care to prevent the injury. In Railroad Co. v. Horst, 110 Pa. St. 226, 1 Atl. Rep. 217, plaintiff driving a horse and buggy, and waiting in a highway to cross the railway track, was invited by one of its trainmen to drive through a gap. which had been made in the train, and, when passing through, defendant’s servants, by shifting the brakes or couplings, made a noise which frightened the horse, causing it to run away, injuring the plaintiff. It was held that, having invited plaintiff to pass through the gap, the defendant’s servants had no right to shift the brakes so as to alarm the horse. In Hill v. Railroad Co., 55 Me. 438, a case where horses were frightened by a, whistle blown as a signal for starting the train, the doctrine is stated that, “in every case, then, it becomes a question whether in that particular case the act was reasonable, and within the rule
That part of this instruction which refers to the duty of the engineer to proceed with his train is assailed with great vigor. As qualified by what follows, wc think it was correct. Bunning all through
III. Complaint is made because any instruction was given touching contributory negligence. It was proper to instruct with reference thereto. We have examined all the instructions complained of, and discover no reversible error. — Affirmed.