Pence v. Chi., R.I. & P.R. Co.

• Decision Date: 04 June 1884
• Citation: 63 Iowa 746,19 N.W. 785
• Court: Iowa Supreme Court
• Parties: PENCE v. CHICAGO, R. I. & P. R. CO.

63 Iowa 746

19 N.W. 785

PENCE

v.CHICAGO, R. I. & P. R. CO.

Supreme Court of Iowa.

Filed June 4, 1884.

Appeal from Polk circuit court.

This is an action for a personal injury caused by a collision of one of defendant's trains with a wagon in which plaintiff was riding, at or near a public crossing of defendant's railroad track. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff for $10,000. The defendant appeals.Wright, Cummins & Wright, for appellant.

Parsons & Runnells, for appellee.

ROTHROCK, C. J.

1. On the evening of October 30, 1878, at about dark, the plaintiff and one Crews left Des Moines in a common road wagon drawn by a team of mules, to go to the plaintiff's home, in the eastern part of Polk county. The team and wagon belonged to the plaintiff, and were driven by Crews, who was plaintiff's tenant, and worked for him. For a few miles out of Des Moines, the tracks of the Chicago, Rock Island & Pacific Railroad and the Keokuk & Des Moines Railroad run parallel and, at places, near to each other, and both railroads were then operated by the defendant. The plaintiff and Crews were traveling upon a highway which runs parallel with the railroad tracks, and crosses them in two or more places. In going east on the highway they crossed the railroad tracks from the north to the south side near the city limits. From that crossing they proceeded in an easterly direction on the south side of the railroad tracks to a second crossing, where they approached the track of the Keokuk & Des Moines road in a northeasterly direction, and crossed over the same immediately in front of a freight train going east. The team became frightened and unmanageable, and ran along the highway to the other railroad track, a distance of about 216 feet, where it came in collision with a freight train going east on that track. By the collision one of the mules was killed, the wagon broken, and the plaintiff severely injured.

The plaintiff claims that the defendant was negligent in several respects, including the construction of the two railroad tracks in close proximity, the great rate of speed at which the trains were running at the time of the accident, and the failure to whistle for the crossings, and the failure of the engineer of the train upon the northern track to avoid the injury after he discovered the plaintiff's danger. Upon the question as to negligence in running the trains there is a conflict in the evidence. The great preponderance is that the trains were not running at an unusual or inordinate speed, and that the usual signals for the crossings were given. And the evidence is undisputed that the engineer of the train on the northern track did not see the team and wagon in time to avoid the accident. And there is no proof that there was anything in the actions of the team to indicate to the persons on board the train that plaintiff and Crews had lost control of them. There is no evidence to dispute the statement of the engineer that it would have been impossible to check the speed of the train after he discovered the team, so as to have permitted it to cross the track in front of the train, and thus avoid the accident. The question, then, as to the failure of the engineer on the northern train to prevent the accident after discovering the danger, is practically out of the case.

It appears in evidence, without dispute, that the head-lights upon both of the engines were burning brightly, and that the plaintiff was perfectly familiar with the crossing. He stated in his testimony that he had traveled the road “hundreds, if not thousands, of times,” and that he traveled it a great many times during the year preceding the accident, and that he knew the trains on the railroads were accustomed to pass in the evening. His account of the accident, as detailed by him in his testimony upon the trial, is as follows: “As I drove along that night I heard no train. It was very dark, and the wind was blowing from me, and we were anxious to know whether the trains had gone ahead of us. We wanted to be certain, and we stopped just after we had passed the line that runs south from where we travel directly east --that would be about seventy-five yards directly south of the track through Greaver's way; may be not more than fifty. We thought we could hear it there. We could not hear it, and drove on. We stopped again before reaching the railroad track, and it was pretty dark, but we thought it was something near the cattle-guard east of Greaver's. Just before crossing was the last stop we made. The last stop would be fifty or sixty feet away from the railroad crossing, the way the road runs. We neither saw nor heard the train. We then started on--supposed we were going over without trouble-- and about the time we were near to the crossing there was a light flashed and we felt a jerk. The light flashed again, and by this time we were just on the road, and we were going off of it, and it seemed by the brightness of the light, of course, very near to us. I drew myself up like to see--for I thought they would have hit the wagon--to see how much they had missed us. Up to that time I had seen a light. I had not heard of train. I knew the light was there, and was expecting it to hit the wagon. If I heard it just that moment I do not suppose I would have noticed it, for I expected that the train would hit the hind wheels of the wagon before we could get over the track; but we got over without being hit, and, as I threw my head back to see whether they had hit us or not, I saw the train on the...