39 Iowa 523 | Iowa | 1874
Early in the morning of the 15th of February, 1872, the plaintiff, and three of his neighbors, William Eamsey, W. A. Lemon and James Blanchard, started in.an open two horse wagon from Palmyra, in Warren county, to Des Moines, distant twenty miles, where they arrived at 11 o’clock, a. m. The team and wagon belonged to none of the parties,
The situation of the railroad, the highways, and the adjacent objects will be understood by the accompanying plat. [See opposite jpage.]
The distance from the crossing to North River bridge is nine-tenths of a mile, and to the curve of the road seven-tenths of amile. Prom Jack McGlothlin’s house to the railroad the distance is 208 feet; and to the highway 378 feet. The grove at Jack McGlothlin’s house is one hundred and fifty feet from north to south, and one hundred feet from east to west. The trees are four inches in diameter. The country north of the railroad and east of the highway, lying between .widow McGlothlin’s and North River bridge, is open prairie bottom, considerably lower than the wagon road, there being nothing to obstruct the view save fences, crops, and Jack McGlothlin’s house and grove. The railroad track, from the crossing to the ■ curve indicated on the plat, is straight. The plaintiff and his party reached Avon, six or seven miles from Des Moines, about 6^- o’clock p. m.
From the railroad crossing at Avon to the widow McGlothlin’s the distance is about one-fourth of a mile, and from the widow McGlothlin’s south to the crossing, where the accident occurred, the distance is about the same. From about Avon to the widow McGlothlin’s, Ramsey, Blanchard and plaintiff walked. At the widow McGlothlin’s plaintiff’s companions .helped him into the wagon, and he sat, or rather reclined, in .the front end of the wagon, with his back to0ward the team.
Prior to the accident, Lemon had lived within eight and one-half miles of this crossing, for nineteen years. The railroad had been in operation eight or ten months. After the railroad was put in operation, Lemon had traveled that highway a number of times, and had crossed the railroad at that poipt once or twice. The head-light was elevated eight and one-half feet above the railroad track, and Lemon was elevated about six feet above the highway.
These facts are undisputed. It is also clearly proved that the bell was rung for a considerable distance before reaching the crossing.
The verdict of the jury should have been set aside because in conflict with the law and evidence. It is unnecessary to consider the errors assigned upon the giving and refusing of instructions, and the admission of evidence.
Reversed.