Slater v. Burlington, C.R. & N.R. Co.

• Decision Date: 10 March 1887
• Citation: 32 N.W. 264,71 Iowa 209
• Parties: SLATER v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN R'Y CO
• Court: Iowa Supreme Court

32 N.W. 264

71 Iowa 209

SLATER v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN R'Y CO

Supreme Court of Iowa, Des Moines

March 10, 1887

Appeal from Johnson District Court.

ACTION at law to recover for personal injuries sustained by plaintiff, resulting from a locomotive, operated upon defendant's road, striking a carriage wherein plaintiff and others were riding; the driver having attempted to cross the railroad track before the engine. There was a judgment upon a verdict for plaintiff. Defendant appeals.

REVERSED.

S. K Tracy and Boal & Jackson, for appellant.

S. H Fairall, C. S. Ranck and H. F. Bonordon, for appellee.

OPINION

BECK J.

I.

The plaintiff, a boy of about twelve years of age, with a brother probably younger than himself, his mother, a young woman, and a driver, were riding for pleasure in a carriage through the streets of Iowa City, in the night-time. They drove along a street which runs parallel with, and about 100 feet from, the street upon which defendant's railroad is constructed, until they approached the point where the Chicago, Rock Island & Pacific Railroad crosses over defendant's road by a bridge. Here they left the street, following a track down the descent to defendant's road, which it was the purpose of the driver to cross. When attempting to do so, a locomotive running upon defendant's road struck the carriage, and all were more or less injured, the plaintiff very severely, his arm being so torn and crushed as to render amputation necessary, and his skull fractured. The evidence probably shows that defendant was negligent in running the engine at a high rate of speed, in failing to give signals of its approach, and in having no watchman at the crossing of the street over its road. But of these matters we need not inquire, in the view we take of the case.

II. In our opinion, the evidence shows, without conflict, that the driver was negligent in attempting to cross the railroad track without making an effort to discover whether there was a train approaching; and the mother shared in this negligence, in that she failed to require the driver, at a proper place, to stop, and watch and listen for the approaching train. No question is raised upon the point that the negligence of the driver and mother, in whose charge the plaintiff was at the time, would defeat recovery under the rule of contributory negligence recognized by this court. We need not, therefore, examine or...