Schaefert v. Chicago, Milwaukee & St. Paul R'Y Co.
| Decision Date | 15 December 1883 |
| Citation | 17 N.W. 893,62 Iowa 624 |
| Parties | SCHAEFERT v. THE CHICAGO, MILWAUKEE & ST. PAUL R'Y Co |
| Court | Iowa Supreme Court |
Appeal from Clayton Circuit Court.
THE plaintiff's minor son, when driving a team of horses hitched to a wagon, on a highway, attempted to cross the defendant's road at the crossing. The team was struck by a passing train, and the plaintiff's son killed. To recover for the services of his son during minority, and for the value of the horses, harness and wagon, this action was brought.
The ground of recovery stated in the petition is the negligence of the defendant. Trial by jury, verdict and judgment for the plaintiff, and defendant appeals.
REVERSED.
Noble & Updegraff and J. O. Crosby, for appellant.
Stoneman & Chapin and Robert Quigley, for appellee.
The railway approaches the crossing on a curve in a northeasterly direction. The highway runs north and south. The plaintiff resides north of the railway, and from such residence the plaintiff's two minor sons, with a wagon and team started to cross the railway track. Both were seated in the wagon, on which was a hay or straw rack.
The deceased son was driving, and the other son, Ernest, was seated on the right hand side of the wagon. Twenty rods distant from the crossing there is a gate on the highway. At from one to two rods south of the gate the team was stopped for the purpose of listening for the train. It could not be seen from this point, because of an intervening hill and growing corn, or, if this be not true, there was a conflict in the evidence in relation thereto.
Between the place where the stop was made and the track, an approaching train could not be seen from the highway, except at a place about five rods north of the track. If this is not true in fact, the jury were warranted in so finding. From the place where the team was stopped there was a descent in the highway, but, at the five rod point, there was no difficulty so far as the descent in the highway was concerned, in stopping the team, and at such place a coming engine could be readily seen. When the team started from where it had been stopped near the gate, the horses were allowed to trot "pretty fast," or "quite fast," or "pretty good," as the witness who saw the transaction testified, and no stop whatever was made until the horses were quite near the track, when the engine was seen, and when the attempt was made to check them. The evidence is such that the jury might well find that the horses had been in fact stopped when the whistle was sounded, and that they made a spring forward, and the wagon and horses were struck by the engine at about the whipple trees.
The plaintiff's deceased son had during the spring worked as a section hand for the defendant, and had ceased to so work for a time in order to help his father during harvest. When so working for the defendant, the deceased boarded at his father's. There is no conflict in the evidence in relation to the foregoing facts, and the jury found, in answer to a special interrogatory, that there was "a place four or five rods west of the railway track and crossing, about the foot of the hill, where plaintiff's son, Fred., could have seen the train approaching, if he had stopped and looked." The evidence was conflicting as to whether defendant's employes sounded the whistle or rang the bell when the train was approaching the crossing.
It will be conceded that the jury could well find that they did not do so. Although the defendant may have been negligent in not giving the usual signals, this will not warrant a recovery, if the driver of the team was also negligent; that is, if his negligence materially contributed to the accident. This must be regarded as the settled doctrine in this state.
The plaintiff's son, while working for the defendant and boarding at home, must have acquired full information as to the crossing, and the obstacles in the way of seeing an approaching train from the highway. As there is no evidence to the contrary, it must be presumed that he was in full possession of the senses of hearing and seeing, and that he was possessed of ordinary intelligence. He, therefore, could not possibly be ignorant in relation to all the facts as to the crossing. If the jury had found otherwise, the finding should have been promptly set aside. He knew he was about to cross the track, and was bound to exercise ordinary care, having in view such knowledge and all the facts and circumstances.
The stop made eighteen rods from the track, at a place where the approaching train could not be seen, and failing to hear...
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