81 Iowa 426 | Iowa | 1890
Plaintiff received the injuries of which he complains, in October, 1887, in the town of Elma. He was at that time nineteen years of age. While walking near a track of defendant, he was struck by a caboose, and thrown violently to the ground in such a manner that one foot was thrown on a rail and crushed, making amputation of the injured limb below the knee necessary. Other injuries were also received. The accident occuz’red at a point which was generally used by the inhabitants of Elma as a crossing, but it was not in a street, nor other duly established public way. Plaintiff was not in the service of defendant, but claims that he was rightfully in the place where he was injured, and that his injuries were caused solely by carelessness and negligence on the part
The plaintiff contends that he was on the right of way of defendant by invitation ; that he looked southward twice, while walking between the tracks, without discovering any danger; that he had no'reason to expect'that the engine and caboose which he saw moving south would be moved north; and that it should not have been moved back as rapidly as it was, without some one in charge of it. The conduct on the part of defendant, which plaintiff claims should be construed as an invitation to the public to use its right of way, or at least as permission to do so, was that it did not forbid the public from crossing the tracks at the south end of the depot platform, nor from walking along its tracks, and it frequently opened the trains on the different tracks so that pedestrians could cross them at the place in question.
It may be conceded that there was evidence which tended to show that the defendant, gave to the inhabitants of Elma license to cross its tracks south of the depot platform, and even that it invited them to do so by separating its cars for the purpose of removing
The court, therefore, acted properly in taking the case from the jury, and its judgment is aeeirmed.