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

Decision Date16 October 1894
Citation60 N.W. 503,92 Iowa 182
CourtIowa Supreme Court
PartiesKEEFE v. CHICAGO & N. W. RY. CO.

OPINION TEXT STARTS HERE

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

Action at law to recover damages for the death of James Keefe, alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals. Reversed.Hubbard & Dawley, for appellant.

L. A. Ellis and Walsh Bros., for appellee.

ROBINSON, J.

On the 25th day of February, 1889, James Keefe was struck and killed by a locomotive engine of the defendant on its grounds in Clinton. At the time of the accident Keefe was between 65 and 67 years of age, and his hearing and eyesight were good. He had worked in Clinton on the railway track for 25 years, and for 4 or 5 years preceding his death had worked around the depot and in the yard of defendant at such work as the road master from time to time required him to do. On the day of the accident he was engaged with a shovel on a track known as “No. 2,” which extends from the east in a westerly direction across Fourth street. At about 11 o'clock in the morning, an engine known as “No. 61” was taken from the roundhouse for the purpose of hauling out a special train. It was headed eastward, and was backed westward on the roundhouse track, thence over a connecting track to track No. 2. At that time an engine known as Engine No. 561 was moving eastward on that track, and to avoid it engine No. 61 was backed eastward until it had cleared the connecting track mentioned, and stopped. Engine No. 561 was run from track No. 2 over the connecting track onto the roundhouse track. When track No. 2 was cleared, engine No. 61 was backed westward over it. At a point about 100 feet west of the connecting track the tender struck Keefe as he was standing on the track near the north rail, and knocked him down. He was run over and crushed, and dead when the engine was stopped.

The plaintiff claims that the accident was caused by negligence and want of care on the part of defendant in operating the engine. That is denied by defendant. There is much conflict in the evidence, but some of it tended to show, and the jury could have found that it established, the following: Engine No. 61 was moved slowly, and its bell was rung constantly after engine No. 561 passed, and until after the accident occurred. A few moments before Keefe was struck he was stooping over, and appeared to be doing some work with his shovel, but after the tender was within 10 or 15 feet of him he was standing erect, looking westward, but doing nothing else. Had he been attentive to his surroundings, he could easily have heard engine No. 61 as it approached, and avoided it. There was nothing to prevent him from both seeing and hearing it from the time it was passed by engine No. 561 until it reached him. He was familiar with the kind of work done in the yard, and with the movement of engines. It is certain that he was in a place of danger. The presence of the tracks, and cars thereon, and the movement of engines, were constant warnings to him of danger. It is the duty of persons employed in such places to be reasonably diligent in guarding against accidents, and especially to observe and keep out of the way of moving engines and cars. They have no right to rely wholly upon the persons in charge of them to prevent accidents, but must use due care to avoid danger. These rules are founded upon the necessities of the business of operating railways. They are reasonable, and are fully sustained by the decisions of this and other courts. Collins v. Railway Co., 83 Iowa, 346, 49 N. W. 848;Magee v. Railway Co., 82 Iowa, 250, 48 N. W. 92;Haden v. Railroad Co. (Iowa) 48 N. W. 733;Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85;Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835. The jury would have been justified in finding that the negligence of Keefe contributed...

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