Tierney v. Chi. & N. W. Ry. Co.

• Decision Date: 09 February 1892
• Court: Iowa Supreme Court
• Parties: TIERNEY v. CHICAGO & N. W. RY. CO.

84 Iowa 641

51 N.W. 175

TIERNEY

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

Feb. 9, 1892.

Appeal from district court, Clinton county; A. HOWAT, Judge.

Plaintiff states as her cause of action “that on the 8th day of November, 1887, the said Peter Tierney, while walking west along the north side of Tenth avenue, in the city of Clinton, across one of the tracks of defendant, and while in the exercise of ordinary care, was killed, through the negligence of the defendant and its servants. The acts of negligence complained of are that the defendant's employes ran a flat-car and box-car together on one of its tracks across Tenth avenue by the momentum they had acquired by being kicked upon said track, and at a high rate of speed, without brakes being set, and without any one in charge of said cars, and without giving any warning of the approach of said cars, and without having any flagman stationed to warn persons of the approaching cars.” The defendant, answering, denied generally and specifically each and every allegation of the petition. The case was tried to a jury, and at the close of the testimony on behalf of the plaintiff the defendant moved for a verdict upon the grounds that there was no evidence that the defendant was guilty of any negligence which caused the decedent's death, that the undisputed evidence showed the deceased was guilty of contributory negligence, and that there was no evidence to support a verdict for plaintiff. This motion was overruled, and, no further evidence being offered, the case was submitted to the jury, and a verdict in favor of the plaintiff for $1,999.99, the amount asked in the petition, and answers to certain special findings returned. The defendant moved for a new trial upon the grounds, among others, that the court erred in overruling defendant's motion for verdict, in giving certain instructions, and that the verdict is contrary to the evidence and to the instructions given, and not supported by the evidence. This motion was overruled, and judgment entered upon the verdict. Defendant appeals.Hubbard & Dawley, for appellant.

Walsh & Sutton and J. S. Darling, for appellee.

GIVEN, J.

1. The only issues submitted to the jury were as to the alleged negligence of the defendant, and care on the part of the deceased. The other issues were conceded to be proven. Appellant's contentions on this appeal are that the court erred in overruling its motion for a verdict on the ground of contributory negligence, and its motion for new trial upon the same ground, and because the verdict is contrary to the instructions and the evidence. Appellant also complains of the giving of the ninth paragraph of the charge.

Reasonable care upon the part of the deceased is an essential element of plaintiff's cause of action, without which she cannot recover. The presence or absence of such care may be shown by inference from the facts and circumstances proven, or by direct evidence. Under familiar rules of the law as announced in repeated decisions of this court, if there was no evidence showing care upon the part of deceased, or if the evidence shows without conflict that the deceased was guilty of negligence contributing to his death, the court should have directed a verdict for the defendant. If there was a conflict in the evidence, then the question was properly for the jury. If the facts and circumstances proven are of such nature that reasonable persons, unaffected by bias or prejudice, might disagree as to the inference or conclusion to be drawn therefrom, there may be said to be a conflict. For the cases on this subject, see McClain's Digest, under the head of “Practice, Directing the Verdict.” We think the evidence not only fails to show that the exercise of care on the part of deceased may be inferred from the facts and circumstances proven, but that it shows affirmatively, and without conflict, that he was guilty of negligence directly contributing to cause his death. He was bound to exercise the care that an ordinarily careful, prudent person would have exercised under the same circumstances. The circumstances are that on the evening of the 8th day of November, 1889, at about 15 or 20 minutes after 5 o'clock, the deceased was walking westward on the north side of Tenth avenue, in the city of Clinton, and when crossing one of defendant's tracks, known as the “New House Track,” was run over by a flat-car and box-car moving northward, of their own momentum, upon that track; there being no person or signal upon said cars to control their movement or give warning of their approach, and no flagman at the crossing. The evening was cloudy, and there were engines fired up and emitting smoke in the vicinity. The deceased was familiar with the crossing, and knew that no flagman was kept there; knew that cars were liable to be moved upon that track at any time; knew that he was somewhat deaf, and what his opportunities were for seeing and hearing the approach of cars. While he had a right to proceed upon the assumption that the defendant would exercise care in the movement of cars, yet it was his duty to use his sight and hearing to avoid danger. If, by reason of deafness or noises in the vicinity, he could not depend upon his hearing, it was his duty to be the more vigilant in seeing; and if, from the darkness or smoke, he could not see, then the more cautious in going upon the track. That he...