51 Iowa 419 | Iowa | 1879
The defendant introduced as witnesses Sullivan, a brakeman on the train, Eynett, the engineer, and Callahan, a section hand who was on the engine. All these witnesses testify the head-light was burning, and as' to this there is no controversy. The defendant’s witnesses testify they could see distinctly for one■ hundred and fifty feet in front and on each side of the engine. These witnesses saw the deceased. To use the language of one of them the light from the headlight “struck him fair.” When seen by one of them he was walking “kind of sideways, at a pretty good gait, and was heading toward the train.” The deceased had resided in Cedar Rapids for some time, had just crossed a side track, and must have known he was in the vicinity of a railroad. Sullivan testifies he was on the front car before the engine; that he had a lantern, and that when the deceased “stepped up on a pile of iron, two feet from the track, I called to him to ‘look out,’ but he paid no attention to me. The car struck him as he crossed. The corner of the car struck him.” Callahan testifies Sullivan was on the front car with a lantern, and that he heard “Sullivan ‘holler’ a couple of seconds before
Eisher, a witness for the plaintiff, who saw the train two blocks from where the collision occurred, testifies that he did not see anybody with a light on the cars in front of the engine. In other respects the testimony of the witnesses for the defendant is uncontradicted.
There was no evidence tending to show the view of the plaintiff was in any manner obstructed. If the deceased had looked he could, without doubt, have seen the train, and if he had taken this precaution before stepping on the track this unfortunate accident would not have occurred. The law requires this much at his hands before damages can be recovered for his death. Artz v. C., R. I. & P. R. Co., 34 Iowa, 160. We regard the law to be so well settled, and it so accords with reason and common sense, that a citation of other authorities in its support is not required. We may say, also, that the learned counsel for the appellant does not claim the law to be otherwise, but he insists that ordinary care by the deceased may be inferred from circumstances surrounding the transaction, and that it is for the jury to determine from the evidence whether the required care existed.or can be inferred. In support of this proposition Morris v. C., B. & Q. R. Co., 45 Iowa, 29, is cited. This, for the purposes of this ease, will be conceded. But we are of the opinion it affirmatively and conclusively appears the deceased did not exercise the care the law requires at his hands.
It is also urged that as the employes of the defendant saw the deceased, it was their duty to stop the train if' necessary to avoid injuring him, or in some manner warn him of approaching danger. Such is not the law in such a case as that at bar. The train men had the right to suppose the deceased would not heedlessly step on the track in front of the.train. Besides this, he was warned by the head-light and by Sullivan. He might not have heard the latter; of the former he was bound to take notice.
Affirmed.