139 Iowa 709 | Iowa | 1908
About one hundred feet east of the yard tracks of the defendant is Clark street, and in close proximity to the west of these are the yard tracks of the Chicago, St. Paul, Minneapolis & Omaha Railway Company, and farther on is Wall street. Clark street is intersected at right angles by Seventh street, which crosses the eighteen tracks of the two companies, and just beyond the last track on the north side of the street is the watchman’s house, the occupant being an employe of both companies. West of the tracks is a steep embankment, so that Seventh street descends in approaching them from the west. To the north Seventh, Eighth, Ninth, and]
The counsel make the point that, if the children were at play and passed on the licensed way temporarily, and not in using it for travel, they should not be treated as of the class to whom consent to the use of the way had been extended. The trouble with the argument is that the jury expressly'found that the boys had not been at play on or between the tracks, and that they were returning on their way from school. Some witnesses of the defendant testified to warning children and older people from the track yards. Analysis of this evidence leads to the conclusion that, while the children and adults may have been directed to get out. of the way, “to leave the yards,” they were not warned against passing on their way either diagonally over the tracks or from along the first between the rails, save in one instance. Thus the witness Peters testified that, “if the children were close enough, we hollowed to them to get out the way and stay out.” But he also said that he had seen them crossing the tracks, not in the way of his engine, when he paid no attention to them. The testimony of Earl Knowles indicated that the men were simply warning children to get out of the way, and as this boy said, they advised 'him many times to keep from between the rails, and to walk between the tracks. Another boy testified that, while hunting rubbers on the track, he was told to get away. The watchman warned them from the tracks near the watch-house. Cosgrove testified generally, and others,
We are of the opinion that the evidence was sufficient to support the verdict, that the issues sufficiently defined
Tbe judgment is affirmed.