93 Iowa 248 | Iowa | 1895
On the forenoon of May 15, 1890, Earl Thomas, a minor son of plaintiff, aged three years and ten months, was, with a little companion, playing upon an open, uncovered bridge, located upon the defendant’s main line of road, about one thousand nine hundred feet west of the station of Rhodes', and, while there at play, was run over by a train going towards the west, and his right foot and log were so maimed and crushed as to necessitate amputation. It is averred in the petition that, without fault on the part of his parents, the child went upon the track and the bridge, and was in plain sight from the station, and at all points along the road leading from the station to the place of accident; that defendant’s employes, with knowledge that the children were upon the track, started a train from the water tank at the station, a distance of about ninety rods from the bridge, westward (the engine being in front, but with the tender foremost, and with the pilot
The court below, in its instructions, eliminated from the case all charges of negligence, except the last one in the petition, viz., the one alleging that the defendant’s employes were negligent, after they saw the children upon the track, in failing to use all available means at hand to stop the train, and avoid injuring them. This charge of negligence was submitted to
We think the instruction is wrong — First, because the latter part of it entirely neutralizes the first, part; and, second, because it announces an incorrect proposition of law. The first part of the instruction clearly announces the rule that the children were trespassers, and had no right or license to be upon the track or the bpidge. If they were trespassers then the company owed them no duty until its employes actually saw them upon the track, and in a place of danger. Then, and not till then, did any active duty on the part of the defendant’s employes commence. It has long-been the established rule in this state that a railroad company is not required to keep a lookout for trespassers, and that it is not negligent in failing to discover them upon its track. This is an undoubted rule, sustained by an unbroken line of authorities. See Masser v. Railway Co., 68 Iowa, 602, 27 N. W. Rep. 776; Burg v. Railway Co,, 90 Iowa, 106, 57 N. W. Rep. 680;
II. Counsel have discussed at some length the question as to whether a child of tender years can be a trespasser, or not, and appellee’s counsel have cited some authorities holding that it cannot be. Other authorities cited hold that a child1 of the age of the one injured in this case cannot be guilty of contributory
III. In thei sixth instruction the jury were told that defendant’s employes were not required to be
IV. In the eighth instruction the jury were directed to consider whether any of the employes on the defendant’s train were negligent after they discovered the plaintiff’s child upon the track, and measure the duty required of an employe under such circumstances as given. And in the special interrogatories the jury were directed to' answer as to Whether any of the employes in charge of the train were negligent or not. It is insisted that this was error, because there was no evidence that any of the employes, other than the engineer, were negligent. To this it may be said that, con
Y. Appellant earnestly contends that there is. no evidence of negligence on the part of the engineer sufficient to take the ease to the jury. In view of a retrial, we do not think it advisable to discuss the question at this time, and therefore dismiss it without further consideration.
VI. Other questions are discussed, but, as they will not arise upon another trial, we do not consider them. It miay be said, however, for the guidance of the court, that the rule relating to impeaching testimony was not observed as closely as it should have been. For the errors above pointed out, 'the judgment of the District Court is reversed.