94 Iowa 46 | Iowa | 1895
The evidence shows that in the month of October, 1891, the plaintiff, while walking" along the side of one of the defendant’s railroad tracks, - was struck by a moving car, and thrown down and injured. The car was moving in the same direction which the plaintiff was walking, and when it reached the place of the accident the plaintiff was so close to the.track that the car could not be pushed past him without: striking him. The main question in the case is,'did the • plaintiff show that he exercised the care which the law. requires,.to protect himself from injury? . Or, in other, words, did the evidence introduced by the plaintiff show ■. such a degree of care and caution as to.authorize the, jury to find that he was not chargeable with negligence which contributed to the injury for which he seeks to, recover? A proper determination of that question has, made it necessary to carefully read the evidence in the case. Appellant’s abstract purports to be an abstract of, all the evidence. Appellee filed an additional, abstract, and each party disputes the correctness of the abstract filed by the other. This has made it necessary to examine the transcript of the evidence, as taken down by the short hand reporter on the trial. In doing so we have practically discarded the abstracts. We will dispose of the case by a statement of facts which the evidence establishes beyond question, and which, in our opinion, authorizes the court to direct a verdict for the defendant. It is unnecessary to set out the testimony of the witnesses.
As has been stated, the plaintiff was injured while walking along the side of a railroad track in the defend-' ant’s switch yards. The accident occurred in what is ' known as a street, but which is occupied to such ah extent by the railroad tracks that there is no Other ' traffic along the street. It is not used for driving
II.. ; There is but one other point necessary, to be considered. It is charged in the petition that the employes of the defendant, in managing the train'to which the car was attached, were negligent in not stopping the train when they discovered the plaintiff’s peril. The train by which the plaintiff was. injured came from another track, upon the track near which plaintiff wais walking; and the plaintiff testified that, after he struck the point of intersection, he walked probably the length of a rail and a half before he was struck. He was in no danger until he passed the point of intersection, and the evidence, shows, beyond' all question, that as sóón as the switchman saw that plaintiff was walking too near the track the cry of alarm was given, and the train was promptly stopped.
Without further elaboration, it is sufficient to say that this whole record, when carefully read and considered, shows a state of facts absolutely conclusive against a right of recovery. We need not cite authorities to sustain our conclusion. . It is a plain case of seeking a recovery when the undisputed facts and familiar rules of law stand in the way of reaching such a result. The judgment of the district court is affirmed.