— The deceased, in the forenoon of the sixteenth day of June, 1887, was traveling in his wagon, drawn by two horses driven by himself, on Fourth street, in the city of Clinton. He was going from the north to the south, and Fourth street is crossed by ten railroad tracks. The first eight, numbering from the north, belong to the Chicago & Northwestern Railway Company; the remaining two to the defendant. The evidence, without conflict, shows that the deceased did not stop his team after he passed onto the first track, and that he was struck and killed by a train of cars which was being backed on defendant’s track number ten. The deceased was familiar with the crossing, and he had driven his team over it quite frequently. The petition states that there was an ordinance of the city requiring the defendant to keep a flagman at the crossing ; but this issue was withdrawn from the jury. It is also alleged in the petition that there was an ordinance which prescribed that trains should not be operated within the city limits at a greater speed than six miles an hour. There was evidence tending to show that the train in question, at the' time, and just prior to the accident, was moving at the speed of from ten to twelve miles an hour. There were cars standing on several of the tracks, and a whole train was standing on track number seven ; the last car of which, as the evidence tended to show, projected into the street. Engines were being moved on some of the tracks, at
Schmidt v. Burlington, Cedar Rapids & Northern Railway Co.
75 Iowa 606
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