Bloomfield v. The Burlington & Western Railway Company

Citation38 N.W. 431,74 Iowa 607
PartiesBLOOMFIELD v. THE BURLINGTON & WESTERN RAILWAY COMPANY
Decision Date07 June 1888
CourtUnited States State Supreme Court of Iowa

Decided May, 1888

Appeal from Mahaska District Court.--HON. J. K. JOHNSON, Judge.

ACTION at law to recover damages for an injury to the person and property of plaintiff by a collision of a locomotive engine with a wagon at a street crossing in the city of Oskaloosa. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals.

REVERSED.

Kelly & Cooper and John F. Lacey, for appellant.

Carroll & Davis and Blanchard & Preston, for appellee.

OPINION

ROTHROCK, J.

I.

There is no dispute that the collision occurred, and that the plaintiff and his wagon and horse were injured. The question is, did the plaintiff show by the evidence that the injury occurred by reason of the negligence of the defendant's employes in running the engine, and without contributory negligence on his part? The case has been tried three times in the court below. At the first trial there was a verdict for the plaintiff, which was set aside. At the second trial the jury failed to agree, and at the trial from which this appeal was taken there was a verdict for the plaintiff for two hundred dollars. We have had occasion to examine many cases of this kind in this court, and appeals are frequently made to us to reverse alleged excessive verdicts and judgments. The right of recovery in this case rests entirely upon the testimony of the plaintiff, and it is evident that the jury gave credence to his testimony as to the right of recovery, and disbelieved him as to the extent of his injuries. There can be no other reason to account for the insignificance of the verdict. We do not think that there was any evidence in the case, not even that of the plaintiff which warranted a verdict in his favor for any amount. He attempted to cross the railroad track in a one-horse wagon after dark. The engine with which he came in collision had a head-light brightly burning. This head-light was in full view of the plaintiff when he reached a point fifty feet from the crossing, and from that to the crossing there was nothing to prevent him from seeing it. We mean to say that from a point fifty feet from the crossing he could have seen the head-light on the engine three hundred and fifty feet from the point of observation. It is useless for him to testify that he looked and listened for an approaching engine. His...

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