152 Iowa 449 | Iowa | 1911
The deceased child lived with its parents upon a farm of two hundred and forty acres in Appanoose county. The defendant’s line of railway crosses the farm from northwest to southeast in such manner as to leave the buildings and about twenty acres of land on the east side of the track, and the remainder of the premises on the west side. The farmhouse stands within a few feet of the defendant’s right of way. The well from which the live stock on the farm is watered is on the westerly side of the track, and the milking is there done. Immediately adjoining the yard inclosing the house is a barnyard, from which a private crossing at grade has been constructed over the track. At the time of the accident this crossing was protected by gates and fences. Looking from this point to the northwest, the, track follows a straight line for a distance of several thousand feet. Five hundred feet to the northwest of the private crossing is a public crossing. The train causing the injury was a freight moving from the northwest. It was a light train of about sixteen cars. AVhen about seven hundred feet from the private crossing, the engineer saw some object or thing on the track or close to the easterly rail, but did no't recognize it as a child until he reached the public crossing. Then, according to his showing, all his efforts to stop the train in time to avoid a collision were unavailing, and the child was struck by the locomotive and instantly killed.
I. Bearing upon the question of alleged negligence, the trial court instructed the jury as follows:
If you find by the greater weight or preponderance of the evidence that the deceased child at the time he was struck, or just prior thereto, was on the railroad track and between the cattle guards of the private crossing, and further find that on account of the location, situation, or surroundings of the private crossing, such as its proximity to plaintiff’s residence or the frequency of its' necessary use by members of plaintiff’s family, or others using the same in the operation of the farm, the exercise of ordinary care required that defendant’s employees operating its engine should on approaching the same have kept a lookout for persons rightfully using said crossing, and further so find that said employees failed to exercise ordinary care to do so, and thereby failed to discover the deceased on said track in time to stop the train or to avoid the accident, such failure would be negligence for which defendant would be liable, and, if you find that such negligence was the cause of the accident, your verdict should be for the plaintiff.
The landowner does not hold his private crossing by the mere consent, license, or sufferance of the railway company. Nor is his right to its use dependent merely upon any invitation, express or implied, extended by the company. It is a right which is guaranteed to him by the statute. He has as much right to use his private way across the company’s track as the company has to use its track across his 'private way, subject, of course, to the precedence which the heavy and rapidly moving trains of the railway may require when both parties approach the crossing at the same time. Thomas v. Railroad Co. (C. C.), 8 Fed. 729. If, then, both the railway company and the landowner may rightfully occupy and use the crossing for its designed purposes, it follows of necessity under familiar principles that each party must exercise that right
If a private crossing has been established and is being maintained, the railway company and its engineers must be presumed to know that fact. They know, also, that in the ordinary cultivation, use, and enjoyment of the farm such crossing will be occupied by the owner, 'his family, and his employées in passing between the tracts separated by the railway, and such occupancy will be more or less frequent according to the location of the crossing, the manner in which the land is divided, and the particular uses made of it. Under some circumstances, the danger to be reasonably apprehended by collision or accident may be very slight, and in' others very great.
It is not within the province of the court to prescribe as a matter of law what particular acts of caution shall be observed, but it may direct the j.ury that if in its judgment, in view of all the matters adduced in evidence, reasonable care requires the enginemen in charge of a train to anticipate the possibility of collision with persons rightfully rising the crossing and to keep a lookout in approaching it in order to avoid such accident, then the omission so to do will be negligence.
This point was expressly considered in Morris v. Railroad Co., 24 N. Y. Wkly. Dig. 160, where the court says that the mere fact that a private crossing exists does not of .itself cast upon the company the duty to sound a signal of the approach of a train or to reduce its speed»; yet it is under obligation to the landowner not to unnecessarily subject him or his property to injury on such crossing, and to that end its employees engaged in running its trains have the duty of continuous observance ■ of the situation in advance, that no needless injury may be done. A very similar rule hafc been observed in leading cases where the
Such being our view, we have to say that the charge of the court to the jury was as favorable to the defendant as appellant could rightfully ask, and there was no error in sending the question •of appellant’s alleged negligence to the jury. The case, of Rutherford v. Railroad Co. 142 Iowa, 744, on which appellant relies, is not in point. The plaintiff there was not injured upon a crossing, and the substance of the decision was that he was none the less a trespasser or mere licensee simply because he entered upon the right of way at an open private crossing. The trial court carefully charged the jury in this case in accordance with the rule laid down in the precedent here referred to.
It is true that in that case and in some other authorities language is used to the effect that the duty incumbent upon a railway company with respect to private crossings differs somewhat from that which it is required to observe concerning public crossings, and this is undoubtedly correct, but no court has ever said such company is not as a matter of law charged with any duty towards those who rightfully use them, except to avoid running them down when discovered in time to avoid it.
Our conclusion that the court did not err to defendant’s prejudice in its instructions upon the question of negligence is controlling upon most of the other exceptions argued by counsel, and they must also be overruled.
Moreover, the matter inquired about was not one upon which the witness was required to show a ‘high degree of expert knowledge before being allowed to testify.
We find no error in the record, and the judgment of the district court is affirmed.