Moore v. The Chicago, St. Paul & Kansas City R. Co.

• Decision Date: 25 January 1895
• Parties: W. E. MOORE, Appellant, v. THE CHICAGO, ST. PAUL & KANSAS CITY RAILWAY COMPANY
• Court: Iowa Supreme Court

61 N.W. 992

93 Iowa 484

W. E. MOORE, Appellant, v. THE CHICAGO, ST. PAUL & KANSAS CITY RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

January 25, 1895

Appeal from Polk District Court.--HON. S. F. BALLIET, Judge.

Action to recover for a personal injury sustained by plaintiff by the alleged negligent management and operation of a locomotive engine at the crossing of a street in the city of Des Moines. There was a trial by jury. At the close of the introduction of the evidence the defendant presented a motion for a direction to return a verdict for the defendant. The motion was sustained, and the verdict was returned according to the direction. Judgment was rendered on the verdict, and plaintiff appeals.

Reversed.

St John & Stevenson for appellant.

Cummins & Wright for appellee.

OPINION

Rothrock, J.

At the time of the injury the plaintiff was driving a horse and wagon, delivering goods to the customers of a tea company. The wagon was what is known as a "covered delivery wagon." He drove the horse upon the defendant's track on Eighth street, and the horse was struck by a switch engine, and was thrown some twenty feet by the collision, and instantly killed. The wagon was demolished, and the plaintiff seriously injured, and one end of the engine went off the track. The whole contention on the trial appears to have turned on the question as to whether the plaintiff was chargeable with such negligence and want of care in driving on the track as to preclude a recovery for his injuries. During the progress of the trial, and, as we understand the record, before the plaintiff concluded the introduction of the evidence, the following proceedings were had, as appears from appellant's abstract: "Here the defendant made the following requests of the court 'First, that the jury be permitted to inspect, under proper direction, the premises at which the accident occurred; secondly, that while the jury is upon the premises and in the presence of the court and reporter, it be permitted to station the jury in a wagon the same height of that of the plaintiff's at the time of the accident, first twenty-five feet south of the railroad track, in the center of Eighth street, and that while so stationed, it may run an engine from the bridge across the Des Moines river to the crossing at which the accident took place; second, that the jury may then be stationed, under the same conditions, at a point forty feet south of the crossing, and the engine run from the bridge to the crossing or the crossing to the bridge; third, that the jury may be stationed at a point sixty-two feet south of the crossing, in the same condition, and, while so stationed, that the engine may be run from the bridge to the crossing or from the crossing to the bridge.' To these requests the plaintiff made the following statement and objections: That he joins in the request of defendant to have the jury visit the grounds where the accident occurred, and requests that they may be permitted to look the entire grounds over, and consents that they may make any measurements that they may choose to make, and be at liberty to make any observations they may choose to make; but objects to the running of an engine, for the reason the jury cannot be placed in the same situation that the plaintiff was in at the time of the accident, and because there is no authority of law to make such a test, and because there is no offer to run the engine at the rate of speed at which the testimony shows it was running at the time of the accident. In pursuance of this request, the jury were instructed by the court as follows: 'We are about to go in a body to...