189 Iowa 918 | Iowa | 1920
It is suggested for the appellant, in effect, that the physical facts negative that dece
What is the state of the evidence on ivarning other than by bell or whistle?
The train ivas running on a very steep grade, — 15 feet in 1,200, — and there were curves and reverse curves. It consisted of 26 loaded freight cars, and needed and had two engines. As decedent and his' companion were walking the track in front of this train, they were able to understand what each said to the other. It is conclusively shown the train was making an unusual amount of noise, and it was a physical impossibility for these engines to haul that train up these grades without a great deal of puffing and noise; and it is testified to without dispute that the two continued to walk right on their way, and paid no attention to the train.
Not only is it so shown that the train must have been heard by decedent, but it is established that a witness who saw decedent on the track did at that time see and hear the train very plainly. True, ivhether one is guilty of contributory negligence is ordinarily a jury question. That proposition requires no citations. But all fact questions
Contributory negligence bars recovery, unless the doctrine of last clear chance may be submitted to a jury.
Second, the petition negatives that the decedent could be or was seen. One ground of negligence relied on is that the engine was not equipped with any headlight, and that it was negligent not to have sufficient headlight to have enabled decedent to become aware of the approach of the train. Another allegation of'negligence is that the train was running at a high and dangerous rate of speed, and in excess of 35 miles an hour. It may be conceded there is a conflict on whether these allegations are true. But, be that as it may, these allegations bind the one who makes them. When their truth militates against the one who pleads
It follows that the judgment below must be — Reversed.