55 Iowa 33 | Iowa | 1880
The plaintiff in his testimony explains the situation as follows :. “ South of the depot there is a ditch that runs east and west that carries water, and south of that there is a ditch between the side-track and the main-track, and there is generally water there, and that is quite a length. You would have to go pretty near the points of the switch to be anyways level, and after you get back there, there is the ditch and the culvert; the grade north of my house is very bad; the ground between our house and the stock-yards is very bad, in fact there is no passage there.”
Question. “ Can you go through there on the south side?”
Answer. “No, sir.”
Question. “ Can you go through there on the north side?”
Answer. “No, sir.”
On cross-examination the witness stated: “There was no way to go around the end of the train. On the south there was a ditch to cross that drains the mines. Sometimes there is a great deal of water in it. I do not know whether it was running that night or not. There is a pond nearly all the time between the side-track and the main track. Could not have gone around the cattle pens very well; there are ditches there; I would not like to risk it at night.”
The train lay across the highway for about three-quarters of an hour, and was not cut. One Bedford was selling goods at the plaintiff’s door. When. he heard the freight train coming in from Fairfield he began to gather up his things, saying he wanted to go on the train coming in. Upon this branch of the case the plaintiff testifies as follows: “Capt. Bedford asked me to help him to the caboose. I picked up one of his satchels and we started. I could not get through on the street, the train was there, and I could not get through
The plaintiff further testifies as follows: “ The engineer knew we were going back; knew where we were going: we told him we were going on the caboose just before he started back. I told the engineer we had to get through; that the
Under the testimony of the plaintiff we feel satisfied there can be no recovery. It is difficult to conceive of an act more recklessly careless than an attemjxt in a' dark night to crawl under a freight train with locomotive attached. The plaintiff has not the excuse of a passenger desirous of taking a train, for'lie did not intend to become a passenger upon the train. But in our opinion a passenger is not justified in recklessly endangering his limbs and life for the purpose of taking a train. If reasonably safe access to the train is not provided he ought to forego becoming a passenger upon the train and look to the company for damages sustained. The rule which denies relief to a party guilty of contributory negligence is based upon grounds of public policy, which require, in'the interests of the whole community, that every one should take such care of himself as can reasonably be expected of him. Shearman and Redfield on Negligence, section 42.
It would be utterly subversive of this doctrine if there could be a recovery under the facts of this case. In our opinion the court propeidy directed a verdict for the defendant. See McAunich v. M. & M. Railroad Company, 20 Iowa, 338 (346); Artz v. C., R. I. & P. Railroad Company, 34 Iowa, 153 (159); Dodge v. B., C. R. & M. R. R. Co., 34 Iowa, 276; Lang v. Holiday Creek R. R. Co., 42 Iowa, 677; Murphy v. C., R. I. & P. R. Co., 45 Iowa, 661.
In Rouch v. Lloyd, 31 Pa. St., 358, cited by appellant, the party injured by passing under the train was a lad six or seven years of age. The decision was placed upon the ex-pi-ess ground that the rule, applicable to an adult, cannot be
Aeeirmed.