142 Iowa 744 | Iowa | 1909
Prior to April 30, 1907, John Rutherford lived upon a twenty-acre farm, owned by his wife, in Poweshiek County, Iowa. He owned land in his own right some few miles distant from where he resided. At the time mentioned he was about ■ seventy-six years of age, but personally managed, not only the twenty acres of land upon which he lived, but other lands as well. Some years prior to his death he received an injury to one of his hips, and as a result one limb was rendered shorter than the other, and he habitually walked with a cane. The defendant company operates a line of railway, running north and south, through the twenty acres of land upon which Rutherford lived, leaving the house, barn and orchard on the east side of the right of way, and the remainder of the land, or about one-third, on the west side. This one-third was either in grain or crops, and was used for agricultural purposes. In carrying its roadbed across the twenty-acre tract the railway made a cut extending across the entire tract, and varying in depth from practically nothing at the north side of the land to from seven to ten feet at other places as it .ran south. At or near the barn the railway company constructed a private crossing across the right of way, in order that plaintiff might get from one part of the land to the other. This was done by making an excavation or cut west of the right of way down to the surface of the track which it crossed at grade, and from the railway proper to the westward, until it came to the surface of the ground, something like seventy feet west of the roadbed. At each end of this crossing there was a gate, the east one being twenty-six feet from the east side of the railway cut. This. crossing had no cattle guards or wing fences, and nothing to prevent stock from going either north or south upon defendant’s roadbed when they were let upon the right of way through the private cross
On April 30th Rutherford, accompanied with his dog, started to drive four head of cattle over the defendant’s right of way through the private crossing. When the cattle reached the roadbed they turned north, and ran up this roadbed to the McDowell crossing, where they were stopped by wing fences. The dog seems to have been with them at this time, and he got them turned around and started south again. The dog followed them down the track until some were struck and killed by a train. The train which struck these cattle alsp struck Rutherford, who was then upon the fill, above referred to, at a place where it was from eighteen to twenty-five feet higher than the natural surface of the ground. There was testimony tending to show that there was no place on top of this fill where plaintiff could have stepped off in safety to have avoided a passing train; but this was denied by defendant’s witnesses, who testified that there was a place at the base of the ballast, and upon the top of the dirt fill, where Rutherford could have stood in safety. From the McDowell crossing to a point about one-half mile south of the Rutherford crossing defendant’s line of railway was practically straight, with nothing to obstruct the view of engineer or fireman. South of the Rutherford crossing about one-fourth mile was a public highway crossing, and it was up grade from this point north to where Rutherford was killed. The train which did the damage came from the south. It was made up of an engine, a car of stock, and a way car, and it is
The negligence charged against defendant, and for which recovery is sought, consists of (1) in running its train at a high and dangerous rate of speed; (2) failure to stop the train after coming in full view of Rutherford; (3) in negligently and recklessly running the train upon Rutherford after it saw, or by reasonable care and diligence should have seen him (Rutherford) upon the track; (4) failure to stop the train after it saw, or should have seen, Rutherford on the track. It is further charged:
That at the time defendant’s said train came in plain view of the said John Rutherford upon said track, and when said train was about a quarter of a mile distant from where the said John Rutherford was struck and killed, the said John Rutherford was then and there greatly excited, and in a place of peril upon said track, and at a place where he was not able to extricate himself therefrom in time to save himself from the rapidly approach*750 ing train, which facts were then and there well known to defendant’s servants and agents, who were then and there operating said train; that when said train came in view of the said John Rutherford upon said track, the said cattle were upon said track, and about halfway between said train and the said John Rutherford; that at the time the said John Rutherford excitedly signaled said train to stop by waving his cane and his arms; that the place on defendant’s track where the said John Rutherford was at the time said train came in view was an exceptionally high fill, the grade descending abruptly on either side of defendant’s track a distance of about forty feet, and said track and sides of said fill were at the time covered with snow and ice, which facts were at the time well known to the servants and agents of the' defendant; that defendant’s said agents and servants could, by the exercise of ordinary care, have stopped said train before it reached the said John Rutherford, and after they saw, or by the exercise of reasonable care could and should have seen, that the said John Rutherford was upon said track, and in an excited condition, and in a place of peril from which he could not extricate himself in time to prevent being struck by said rapidly approaching train; that after coming in view of said John Rutherford upon said track a quarter of a mile distant from where said John Rutherford was struck and killed defendant failed and neglected to give any warning, either by ringing the bell, or by blowing the whistle; that the defendant failed to slow down its train or stop the same before striking and killing the said John Rutherford.
The answer was a general denial and a plea of contributory negligence. The case was submitted to the jury upon certain specifications of negligence, and in answer to special interrogations the jury made the following findings: “How far from the decedent was the defendant’s engine when the engineer first discovered that decedent was not far enough east to clear the train ? Answer: Three to five feet. Did the engineer in charge of the train, at the time he first saw the decedent, have reason to believe that the decedent was not, for some reason,
the track in a place of peril. It is the rule, not only in this court, but of the authorities generally, that no rate of speed in a train moving over and in an open country is negligence. Kinyon v. Railroad, 118 Iowa, 349; Hartman v. Railroad, 132 Iowa, 582. There is nothing in the case to show that the situation was such as to demand that the speed of the train be slackened at this particular place by reason of its situation and surroundings. So far as shown, neither the defendant nor its employees had any reason to apprehend that there would be either cattle or men at this particular place. There was no more reason, then, for slackening speed at this particular place than at any other until the presence of cattle or of men were actually discovered upon the track. So that there was no error in failing to submit the rate of speed of the train as an independent ground of negligence.
If you find from the evidence that John Rutherford could have stepped off the’ track a sufficient distance to avoid being struck by the train without falling down the embankment, and he failed to do so, then he would be guilty of contributory negligence; and, if you so find, your verdict should be for the defendant. An engineer operating a locomotive may rightfully presume that a*753 person on the railroad track will leave it upon the approach of his train until the contrary is, in some way, manifested to him. It is not the law. that when a human being is discovered on the track, an engineer must stop his train, unless he has some reason to believe that for any reason the person will not leave <the track. Therefore, if you find from the evidence that when the engineer saw the deceased upon the track, the engineer had no reason to believe that the deceased was in a perilous situation, then your verdict should be for the defendant.
These instructions are challenged, and it is contended that Kutherford was not a trespasser upon the track. For the moment we may assume that he was not; but it is evident that, unless there be some excuse which does not appear in this record, he (Kutherford) was guilty of contributory negligence in going upon the railway track, and continuing thereon after he saw the approach of defendant’s train. As applied to the doctrine of contributory negligence, there was no error in the instructions.
No prejudicial error appears, and the judgment must be, and it is, affirmed.