90 Iowa 76 | Iowa | 1894
I. The testimony shows that - the-ground where the accident happened is bounded on the east by Jefferson street, on the south by the Des Moines-river, and on the west by Greene street. A plat attached to the abstract shows that Greene street is on the east,, and Jefferson street on the west; but this is a mistake,, as appears from the testimony of all of the witnesses. The action is brought to recover damages to the team,, wagon, and harness of plaintiff. The following facts-are either admitted in the pleadings or established by the evidence: The accident occurred on the switch and depot grounds of defendant, in the city of Ottumwa, and on defendant’s track. These grounds lie between the depot grounds of the Chicago, Burlington & Quincy Railway Company and the Des Moines river, and access-is had to them by passing down either Greene or Jefferson street. These streets run parallel with each other, and are about four hundred feet apart, and cross the-grounds of both railway companies at right angles. At the time of the accident, plaintiff’s team was in charge of a young man nineteen years old. This man and plaintiff’s son had during the day been hauling bones-in a wagon, and loading them into a car belonging to-
II. It is said that plaintiff’s driver was guilty of negligence which should defeat a recovery. The jury specially found that the driver did not know, and by the exercise of ordinary care could not have known, that' switching was being done in defendant’s yards, where the accident occurred, at.the time of the accident; that the place was not a dangerous place in which to drive teams; and that the driver did not know, and could not have known by the exercise of ordinary care, that it was dangerous to attempt to drive where he did; and that he was not negligent in so doing. It is said that the evidence does not sustain these findings. There is no direct evidence that the driver knew that any switching was being carried on at that time in these yards. As a matter of fact, switching was being done there, but it appears that most of it was west of Greene street, where he could not see it. But, even if he did see it, it does not follow that he had no right in there. He was loading a car, and using the passage, as he had a right to do. The use of this passageway is shown to have been quite general by persons having business with these railroad companies. He was not a trespasser upon the railroad grounds, but there with the knowledge of the defendant’s servants, and, it may be said, with their consent, inasmuch as no protest was made against his being there. The mere fact of his being
III. It is contended that the defendant was not negligent; that it owed no duty to plaintiff to keep a man on a car which was being kicked back over its tracks in its own private yards. Plaintiff’s contention is that it appears from the evidence that no brakeman or switchman had set the brake before the car struck the horses; that, had there been a brakeman at the brake on the car when it was kicked back towards his team, he could and would have stopped the car, and prevented the accident. A ground of negligence, in the petition, is that this car was kicked back without any one in charge or control of it. This is put in issue by the defendant’s answer. We are not prepared to hold that a railway company may switch cars, even at the rate of four miles an hour, in its private yards, where its employees know, or have reason to expect, that the drivers of teams may be lawfully between the tracks, without having an employee ride such cars. Whether they owed a duty to plaintiff to have a man on top of this car which had been kicked back would depend upon circumstances surrounding the accident. They knew that this man was in there with this team. At least, several of the defendant’s employees knew it. They knew that this passageway was used frequently hy persons driving teams, and having business with
IY. Plaintiff asked witness Crowley, an experienced brakeman, this question: “Suppose a car is kicked down the track from about Oreene street toward Jefferson. There is no circumstance to call the brakeman’s attention to any particular effort on his part. That he is riding a car down there. Ordinarily, where would be his position on the car?” To which the witness answered: “The proper place for a brakeman is to be right at the brake. That is what he goes on the car for; to look ahead, and be a-hold of the brake, and be ready.” Allen, an expert brakeman, was asked this question: “Suppose a brakeman is riding a car down there. There is nothing extra to call his attention elsewhere. He is on the car for the purpose of riding it down. The brake is on the front end of the car. At what place had the man ought to be? for the