185 Iowa 1045 | Iowa | 1919
I. The petition alleges that the plaintiff’s decedent was walking along and upon defendant’s railroad track in the town of Ainsworth, in a westerly direction, and in walking, followed the main track; that, while so walking along and upon the track, he was approached from the rear by a passenger train of the defendant; that the engineer and other employees of defendant in charge of the train saw him on, along, and upon the track over which the train was about to pass, and in position of danger from the approaching train; that the employees had knowledge decedent did not hear or know of the approach of the train, knew that a strong wind was blowing from the place where the train was toward where decedent was walking, knew that this wind hindered decedent from hearing the noise of the approach of the train; that they saw decedent in a position of danger in plenty of time to have given warning, and to permit decedent to reach a place of safety; that the employees had the means, opportunity, •and ability to give warning and notice of the approach of the train after they saw decedent, and if they had used these means, it would have enabled decedent to reach a place of safety; that the employees, having seen decedent in a position of danger, and having full knowledge of his peril, negligently failed to give any warning of the approach of the train, negligently failed to slacken the speed of the train, or to make any attempt to protect decedent; that they willfully and wantonly and
passer until he was actually seen in a position of peril. When thus seen, there was a duty not to injure him wantonly or willfully, and a duty to do everything that could in reason be done, after his peril was perceived, to avoid injuring him. This is the extent of the duty, even where the trespasser is an infant, who cannot be charged with contributory negligence. Papich v. Chicago, M. & St. P. R. Co., 183 Iowa 601, and cases therein cited. In that case, it is said:
“Since no duty to the trespasser arises until he is actually seen, it follows, of necessity, no care is due him before his peril is known. On that theory the general rule has been worked out that an owner of property trespassed upon is not liable for an injury resulting from the trespass, merely because care might have successfully guarded- against such injury;” that, until the trespasser is seen in a position of peril, there is no duty to give warning; that the railroad need not take into consideration that there may be trespassers on its line; that it “owes the trespasser no duty, and is not required to be on the lookout for him.”
No one speaks from personal knowledge as to just what the situation was at the very instant when the train struck decedent. One Woodburn did not see decedent until just before the latter was struck. This witness is unable to say whether decedent was walking on the track, or at the side of the track in a path parallel with the track. If decedent was walking on this path, the oncoming train could not injure him, and seeing him there would not be seeing him in a place of peril. His position could become perilous only if he left the path, climbed a rise of some 18 inches, and then turned1 north and went upon the track. Wheeler was some 150 feet from the place where the accident occurred. He says he saw a hat that moved west as the train came on, and that “it did not look like it (the hat) moved very much toward the track. The hat looked to be four or five feet north of the north rail of the track, before it (the hat) moved south, as I have described.” Assuming for the plaintiff that Wheeler is describing the decedent, all that plaintiff may claim from this testimony is that decedent was walking on the path, when first seen by the witness, and that then he seemed to turn toward the track. All the remaining testimony consists of statements said to have been made by the
According to the witness Smylie, the engineer said he saw “the man walking in the path along the right of way, and he was not in any danger until he came within an engine’s length of him. He seemed to stumble sidewise in front of the engine.” According to Woods, the engineer said he saw the man “walking along the side of the track, and that he stumbled toward the train; that be was walking in that path ahead of the train, and he stumbled toward the train and the timber, — the cross-timber on the engine; that he saw tiie man walking in this path. When it got close to him, he tripped or stumbled toward the engine.”
On the whole, we are satisfied that the court rightly instructed a verdict for the defendant. — Affirmed.