122 Iowa 360 | Iowa | 1904
Plaintiff’s intestate, a little boy four years of age, was run over by a train being operated.by de~
East Eourth street in the city of Des Moines, between Locust and Grand avenues, is largely occupied by the defendant company with its tracks and switches. What are known as lots seven and eight in block nine, East Eort Des Moines, lying immediately east of East Eourth street, are owned by the defendant company, and the east sides thereof, save a strip between the two lots which is used as an alley, constitute a part of the defendant’s switchyards. There is nothing to mark the dividing line between these lots and Eourth street. The east track in these yards runs very close to a building in lot eight known as the “Sinclair Building.” A platform for loading and unloading goods from cars into the Sinclair Building was in existence at the time the accident occurred. This Sinclair track extended down to the line of Locust street, which is south of Grand avenue, where it stops. Just west of this first track, which was known as the “Sinclair
There is some question in the evidence about the .position of the child when he was struck — that is to say, as to whether he was under the south car or under the third one from the south, and as to the kind of car which was nearest Locust street. The jury found specially that the boy was not under the third car north, as we understand it, and with that finding we cannot interfere. But there was no finding as to his position under the south car. No one saw the child until after it was struck by the ear, and the only evidence regarding the conduct of defendant’s employes is as follows.
Mr. Dorran, the conductor, said: “As we approached Grand avenue, walking on top of the ears, my view was not obstructed. I looked toward the west side, clear down to Locust street. Wé were approaching Grand avenue. There was no child there towards Locust street. I did not see any.”
Mr. Braiden, superintendent, who was on the train said: “At and just before this last coupling was made I looked south towards Locust street. There was nothing to' obstruct my view along the west side of that string of cars between there and the next crossing below. I looked almost constantly. * * * I did not see any children along the side of the cars; there was none.”
Mr. Simmer, the engineer, said: “As we approached and passed over Grand avenue I was looking south and could see clear down to the north edge of Locust street. I was looking along the west side of the standing cars on the track. There were no children in sight between me and Locust street and near the cars, that I could see.”
Mr. Hershire, the fireman, said: “When the train ap.proached Grand avenue crossing, I was on my seat box. We were going south. The track south was clear at that time. I bad a clear view down to Locust street. I was looking
It will be observed that there was no crossing over the scale track, but that there were several footpaths running north and south parallel with it, from Locust street to Grand avenue, which were reasonably safe for public travel, and which were frequently used for that purpose. Plaintiff’s intestate was not using one of these paths at the time it was killed, but was evidently under the cars, or was very close to them, at the time he was struck. Defendant’s evidence tended to show that it was under the third car from the south, .crawling along on its hands and linees, trying to get out from under the cars by going toward the west. There was also evidence tending to show that the train which coupled onto these cars was moving at a rate of speed not greater than two miles per hour, and that the cars, when struck, did not move to exceed four feet.
Defendant asked this instruction: “You are instructed that if you should find from the evidence that the general public, with the knowledge of the railway company, had been
This instruction should have been given. Looking at the case in the most favorable aspect for the plaintiff, the invitation extended to the public was to use the cinder paths, and not the space between the rails, for the purpose of travel. As
Instruction No. 8 asked by defendant which reads as follows, should also have been given: “You are instructed that at and just prior to the time of the accident in question
It needs no argument to demonstrate the correctness of the proposition of law therein announced, but see Central R. R. v. Rylee, 87 Ga. 491 (13 S. E. Rep. 584, 13 L. R. A. 634). This quotation from that opinion, it seems to us, is eminently sound. “It would be unreasonable to hold the company bound by an implied license or permission when the act is of such a negligent character. It would be unreasonable to
Some of the propositions embodied in these instructions were given by the court in its charge, but not all; and, as the case turned almost wholly on the duty owing the child by the railway company, the issue should have been fully presented.
II. The doctrine of implied license to the use of its tracks by the public in general was not presented as fully as it should have been in the instructions given by the court.
The instructions given by the trial court were in the main correct, but, for the reasons pointed out, the judgment must be REVERSED.