167 Iowa 90 | Iowa | 1914
The plaintiff brings this action as administratrix of the estate of Joe H. Sanderson to recover damages for his death. It is claimed that his death was the result of injuries received by being struck by an engine on one of defendant’s passenger trains, on the morning of the 9th day' of April, 1912. The accident occurred in the town of Garner. The deceased was a man of forty-five years of age. He had lived in this town for thirteen years, and at the time of his death was engaged in the dray and transfer business. During the last years of his life, he had made the morning trains each'
The defendant makes several assignments of error, but in the view we take of the case, it is unnecessary to discuss more than one. That is; Has the plaintiff failed to show that the deceased was free from negligence contributing to the accident which caused his death, and does the record affirmatively show contributory negligence on his part?
But one witness was produced upon the trial who claims
I was standing at the east end of the depot at the time when the west-bound train pulled into the station, and the passengers were unloaded. After it got through with its work, it backed down to the switch and took the switch track and pulled up to the depot on the passing track, and stopped with the engine and baggage car past the depot, the engine being east of and within a coach length of the water tank. I saw Mr. Sanderson there when the west-bound train was standing on the side track. I saw him run across the track to the west-bound train. 1 did not see any one wave for him to come. I think some one called him. I thought I heard some one call him. I do not know who it was. I did not notice him until I saw him run across the track. This was before the east-bound train came into the depot. He had started across the track before I saw the east-bound train coming. I first saw the east-bound train, the one that caused the accident, when it came to the water tank. I should judge this water tank is between eighty and one hundred feet from the depot, about that. My best judgment is that it is one hundred feet from the west end of the depot. The depot is forty-five or fifty feet long. Sanderson was at the east end of the depot, or near there, when he started to cross the track. I was standing about four feet east of the east end of the depot, and Sanderson was about ten feet to the west and to the north of me when he started. He ran right across the track.
He was asked this question then:
Did he get clear across the track, or did the train strike him as he stood? A. He stood there. Yes, the train struck him as he stood. Q. How long do you think he stood there? A. I do not know. It was not very long. A fraction of a minute or a minute. He was facing to the north. I do not think he was looking towards the east. He was not looking in the direction in which the train came, and so far as I saw, he did not look in that direction. I did not see him look that way. He might, and he might not.
Well you saw him all the time, didn’t you? A. I saw him all the time. I did not see him look in that direction at all. I cannot say that I did. I did not see him look that way. He was looking straight north all the time, from all I know, and I saw him from the time he left the depot platform until the time he was struck. The west-bound train, on the passing track, was not moving when he was hit, but it was moving when he started across there. Mr. Hanson and a lady were across the track right by him. The lady was going to get on the train, I suppose. I did not see her get on. I know she was standing at the coach of the west-bound train, and a baggage ear and mail car were ahead of the coach. Also the smoker and the engine of the west-bound train. The engine on the west-bound train was emitting considerable smoke. The wind was from the northwest, and the smoke blew across there down around the depot, and down where I was standing. I saw the engine of the west-bound train when it struck Sanderson. When the engine struck him, he was facing approximately north. I have noticed this west-bound train before. Usually, after its work is done and it takes the passing track, it pulls up west to the switch. The switch is away out there. It is a long passing track, a number of rods. Before this morning, I had observed that when defendant’s west-bound train stopped on the passing track for the east-bound train to pass, it pulled up to the end of the passing track to the switch. I never saw the west-bound train standing in the position it stood this morning. They generally pull up a little further.
The evidence discloses that this train, after it passed the water tank, approached the place where Sanderson was struck at from seven to nine miles an hour. It appears that it stopped at the station, at the place it usually stopped, for the purpose of loading and unloading passengers. At least there is no evidence that it did not stop at the usual place at which it was stopped at this station. There is evidence that this west-bound train, on the passing track, usually pulled to the other end of the switch to be ready to come on the main track, before the east-bound train came in.
I have since that morning stood about the position where we found Mr. Sanderson, and sighted west along between the two rails. My line of vision crossed the main track a little west of the water tank. The further south you went, the further you could see to the west.
Chas. Schoenwetter, testifying for the plaintiff, says:
I have, since the time Sanderson was killed, been down to the depot when the west-bound train was standing in about a similar position as it was that morning. I stood right between the trains. Standing in that position, I looked west along between the tracks, and my vision crossed the main or south track about twenty feet west of the crossing (that is the street heretofore referred to), and would cross the south rail of the main track about twenty feet west of that. The street crossed the track there, and my vision would cross the south rail, on the main" track, about twenty or thirty feet further west. This west street, I should think, is about thirty feet west of the water tank. That is, the east side of the street is about thirty feet west of the water tank. I stood at the place where Sanderson was supposed to have been struck. I went as near as I could to the place where he was injured.
It does not appear from this evidence on which side of the main track this water tank stood.
This is all the evidence offered by the plaintiff, and submitted to the jury upon this question, and from this testimony, we are asked to say that it affirmatively appears that the deceased was free from negligence contributing to his injury. Can we do this?
There certainly is nothing, in this record which affirmatively shows' that the deceased in this case was exercising that care for his own safety which a reasonably prudent and cautious man would exercise under like circumstances and under like conditions. It affirmatively appears that deceased was well acquainted and familiar with the conditions that attended his action that morning. He knew that a train was due from the west. He knew that the west-bound train had gone upon the side track to allow this east-bound train to come into the station. The east-bound train was on time. When on time, this was its passing point. He was a man of years and of experience. The evidence shows that this train approaching, that caused the injury, could be seen from the point where he was injured over two hundred feet. 'It was seen by the witness Rhoades, who was called and testified as to the position in which plaintiff was standing at the time he
But it is.claimed that the eyewitness of his conduct did not see him immediately before, and at the time of his injury, and reliance is had upon some uncertain statements, by the witness that appear in his testimony, in which he says: “I did not see him look to the east while he stood there. He might, or he might not. I saw him all the time. I did not see him look in that direction. I did not see him look that way. I cannot say that I did. He was looking straight north all the time” — and some further statements made by the witness, to the effect that he had crossed the track; that he saw him run across the track before the east-bound train came in. “When I first saw the east-bound train, when it came to the water tank, I do not know where he stood then. He had started across before I saw this train, ’ ’ from which the inference might be drawn that he did cross the track and was returning at the time he was struck. But this witness also testified, just as positively, in answer to this question:
Did he get clear.across the track, or did the train strike him as he stood? A. He stood there. Yes, the train struck him as he stood there. Q. How long do you think he stood
It is argued that this witness did not make such observations of the deceased’s conduct as enabled him to say positively and directly what the conduct of the deceased was at the time of his injury, from which it can be known whether he was or was not exercising reasonable care for his own safety at the time he was struck. It is contended that the smoke from the west-bound train might have obscured deceased’s vision. There is evidence that it reached the point where the witness Rhoades was standing. This was south of these tracks, and at a point east of the depot. It is claimed that the smoke might have obscured deceased’s vision so that he could not see the train approaching, but this does not help the situation, if true, for the reason that he had voluntarily placed himself in this position of danger, with knowledge that the train was due, and with his view of the approaching train obscured. A little attention to his position would have told him where he stood, and the natural instinct of self-preservation would-suggest that he step aside. He could have done this with very, little effort. He was familiar with the trains and the time of their arrival. He was familiar with the location and the position he occupied. The jury would not be justified in assuming, in the absence of any showing to the contrary, that this testimony, given by the eyewitness, “that he stood look-, ing to the north at the time he was struck,” was not a true statement of the fact. It must be borne in mind that this testimony was offered by the plaintiff, and all the testimony on this point. It must be borne in mind that the burden was on the plaintiff to establish freedom from contributory negligence.
It might be argued that the deceased was occupied at the time, and his attention temporarily diverted from the danger of his position, but the only testimony, from which any such
Q. Did you notice after he got across, went over the main track, or part way over it, as to what he was doing — whether he was engaged in doing anything — talking with anybody? A. I think some one called him — I thought I heard some one call him, I don’t know who it was.
With the further testimony:
The west-bound train was not moving when he was hit, . but it was moving when he started across there. Mr. Hanson and a lady were across the track, right by him. The lady was going to get on the train, I suppose — I didn’t see her get on. I know she was standing at the coach of the westbound train.
Neither Mr. Hanson nor the lady was called as witnesses on the trial. Whether he was conversing with them or not, whether he was called to that position by them or not, is not made to appear and there is no showing why these witnesses were not called. They certainly could have given material evidence upon this point. Their presence at that point must have been known to the plaintiff, or could have been easily ascertained from the witness Rhoades. There is no evidence that the deceased had any business with Hanson or the lady, either at that time or at any time that morning. The inference that his mind was temporarily diverted must be drawn from the proof of the existence of some fact, the tendency and effect of which would be to divert attention. If these facts existed, it lay within the power of the plaintiff to make the proof. If he were called by Hanson across the track, if he went there on business, if he was conversing with Hanson or the lady, these facts were susceptible of proof, and the proof was available. The plaintiff for some reason unexplained, has failed to call these witnesses, or make this proof, and would have the court and jury draw an inference from an inference in the absence of the proof of the fact from which
But this presumption, however, does not arise where there is direct testimony introduced by the party who invokes the presumption as to the conduct of the party injured, or where it lies within the power of the party who has the duty of proving this ultimate fact to produce testimony which will show affirmatively the existence of the fact.
There is no substantive evidence that he was called to the position of danger by any one. There is no substantive evidence as to why he went there. There is no evidence that, while there, his attention was diverted from the peril that attended his position. We are asked to draw the inference that because Hanson and the lady were standing near him, at. the time he was struck, that his attention was diverted by this fact, without the proof, which was available, that he was called there by them, had any business with them, was engaged in conversation with them, or that he or they sustained any relationship to each, other, either of a business or social character.
Where there is direct evidence as to whether or not the injured party was negligent, then the inference is entitled to but little, if any, weight.
The court further said in this case:
The instruction given by the court in the case we are now considering was to the effect that, in view of the instinct of self-preservation, a presumption arises that the injured person was careful, which presumption will prevail unless overcome by evidence satisfying the jury that the injured person was negligent. This statement of the law, if it were
To say that an inference may be drawn from the well-recognized, instinct of self-preservation, that an injured person was in the exercise of due care for his own safety, in the absence of all evidence tending to.show how he was conducting himself at the time is to present an, entirely different proposition than to say that a presumption arises, in absence of proof to the contrary, that a person was exercising due care for his own safety, where there is no eyewitness, and that this presumption will prevail unless overcome by evidence that he was not exercising due care. The first is an inference of the existence of a fact from a fact that is well recognized, to wit, that all animal life is possessed of the instinct of self-preservation, and usually and ordinarily is led by this instinct, to avoid injury. This is an inference which may or may not be drawn, in the absence of an eyewitness, from all the facts submitted to the jury, and is based on the thought that all reasonable human beings are inspired by a natural love of life, and are moved by an instinct which leads them to avoid physical harm. The physical facts, however, in the absence of all testimony, may negative this inference. Common experience shows that men do become negligent and careless in their conduct, and, by such negligence involve themselves in dangers from which they may or may not escape. All negligence is bottomed on the thought that one has done, or omitted
It has never been held, nor would it present a sound legal or moral doctrine to say that one, whose conduct is involved, may withhold evidence at hand, or evidence within his reach, which would tend to show what his conduct was, whether careful or negligent, and then rely upon and have the benefit of the mere presumption or inference that he was careful. •If this were to be tolerated, then in every case of personal injury resulting in death, the plaintiff could refrain from calling any witnesses, no matter how numerous they might be, who knew or could testify as to the deceased’s conduct at, or about the time of the injury, and rely upon the inference that he was exercising reasonable care for his own safety, and thereby avoid the necessity of proving, by direct testimony, an ultimate fact essential to his right to recover, or shift the burden of proof upon the defendant to show that he was, in fact, negligent.
The question here under consideration has been so frequently discussed by this court, and the rule has become so well settled, that a mere reference to the cases in which the doctrine has been pronounced is sufficient. See Powers v. Iowa Central Ry. Co., 157 Iowa, 347; Stark v. Ry. Co., 161 Iowa, 393, and cases therein cited.
In Wilson v. Illinois Central Ry. Co., 150 Iowa, 33, this court said:
_ Ordinarily, where one- is- killed and there are no eyewitnesses of the transaction, the law will presume the person killed was in the exercise of ordinary care and doing nothing to jeopardize his life or limb. But this rule does not obtain where there are eyewitnesses.
This is the settled law of this state.
We are satisfied, from this whole record, that the plaintiff has failed to show that the deceased was free from negligence contributing to his injury at the time of the accident, and we
The case is therefore reversed and remanded. — Reversed and Remanded.