Thomas v. Chicago, Milwaukee & St. Paul Raiway
| Citation | 72 N.W. 783,103 Iowa 649 |
| Parties | L. W. THOMAS, Appellant, v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY |
| Decision Date | 30 October 1897 |
| Court | United States State Supreme Court of Iowa |
Appeal from Marshall District Court.--HON. B. P. BIRDSALL, Judge.
ACTION to recover damages for injuries sustained by Earl B. Thomas a minor son of the plaintiff, through the alleged negligence of the defendant company. Jury trial. Verdict directed for the defendant by the court, and judgment accordingly. Plaintiff appeals.
Reversed.
J. L Carney for appellant.
Charles B. Keeler and T. Binford for appellee.
I This is the second appeal in this case. The opinion on the former appeal will be found in 93 Iowa 248. After the reversal upon the former appeal, certain amendments were made to the petition, the substance of which are incorporated in the statement of the case. Just before noon, on May 15, 1890. Earl B. Thomas, a minor son of the plaintiff, aged three years and nine months, was, with another child younger than himself, upon an open uncovered bridge, which was located upon the defendant's line of railway, about one thousand nine hundred feet west of the station of Rhodes, in Marshall county, Iowa and, while there, was run over by a train going west, and his right foot was so crushed as to require its amputation. The petition charges that, without fault on the part of his parents, the child went upon the track and bridge, and was in plain sight from the station, and at all points upon the road between the station and the place of the accident; that the defendant's employes knowing that the children were on the track, started a train from the water tank at the station, a distance of about ninety rods from the bridge, westward (the engine being in front, but with the pilot attached to the cars), and negligently and carelessly ran the train over the plaintiff's child; that all of the persons upon the engine knew that the child was upon the track and bridge, but did not look along the track over which they were going, or exercise any care or caution whatever in the operation of said train or to discover whether or not the track was clear; that it was a wild train, not running on schedule time, and was running with the engine backward; that the train was not manned with a sufficient number of brakemen, and the engine was without steam or air brakes. It is also charged that the engineer and other employes on the train saw the said child in time to have stopped the train and prevented the accident; that they negligently allowed the engine and cars to approach and reach said bridge without signal of bell or whistle, and without any effort to stop said train, and ran over the foot and leg of said child; that the roadway and track of defendant's line of railroad extending from the overhead bridge, just west of the bridge where the injury occurred, to the station of Rhodes, was daily and almost hourly frequented by men, women and children, traveling upon foot, east and west upon said line of railway; that, for the purpose of convenience in access to said railway track from the overhead bridge in connection with the highway, there had been constructed a ladder by the defendant's employes, or with their knowledge and consent, so that persons could have ready access from the highway to the railway track, and also from the railway track to the highway; that with the knowledge and consent of the defendant, and for more than ten years prior to the accident, people residing in the vicinity of the bridge and in the town of Rhodes had constantly used the track of the defendant's railway for the purpose of traveling to and from the depot, school, and village of Rhodes, and had used said ladder for the purpose of reaching the track of the defendant; that the public generally had leave and license to use said railway track as a footway, and the child Earl was not a trespasser thereon; that defendant's employes were negligent in not exercising watchfulness and care in reference to the train while it was passing over such part of the track where pedestrians had license to walk, and such negligence caused said accident. To the answer the defendant interposed a general denial, except that it admitted its corporate capacity, and that the accident was caused by one of its trains. When plaintiff's evidence was in, the defendant moved the court for a verdict in its favor, because there was no evidence warranting a verdict for plaintiff; that there was no evidence sufficient to sustain a finding of negligence on part of the defendant company or its employes which was the cause of the accident; that the evidence did not warrant a finding that the defendant owed to the child any legal duty of watchfulness and care before his position was known, and it is not shown that there was any want of care after his position was known; that no license or right upon the part of the child to be upon the track and bridge had been shown, but he was a trespasser; that the evidence failed to show any invitation or consent by the defendant to use its track and bridge as a footway; that the evidence failed to show that the engineer or other trainmen actually saw the child upon the bridge before the accident, or, if they did see him, that they had failed to use all the means and appliances at their command to stop the train and avert the accident. This motion was sustained.
II. An important question in this case is as to whether the child Earl was upon the track and bridge of the defendant company by leave or license of the defendant. The former trial was had upon the theory that the child had no right upon the track; that he was a trespasser; and that there was nothing in the situation or surroundings requiring the trainmen to be on the lookout for persons on the track. If the child was a licensee, instead of a trespasser, another rule of law may obtain. The evidence which it is claimed shows a license to use the track and bridge as a footway by pedestrians may be briefly stated as follows: For many years prior to the accident, the bridge and track of the defendant company, from the place of the accident to the station of Rhodes, had been in almost constant use by people living in the vicinity of this bridge as a footway in going to and from the depot, school and village. Children of from four or five years old and upward used it as a means of going to and from school. The bridge passed over a private highway, and access to the bridge and track were had by the use of a ladder reaching from this highway to the head block of the bridge above. It does not appear as to who erected this ladder. The bridge was fourteen feet above the highway. There were paths leading from the track to this ladder. These paths were well worn. This track and ladder were also used by persons living in the village who had occasion to visit those living in the vicinity of this bridge. The distance to the village was much less by way of the track than by the highways. There was no evidence to show that the defendant company ever gave leave or license to use this bridge and the track as a footpath, nor does it appear that the defendant company ever made any attempt to prevent such use. The ladder could be seen from the track. The road master of the defendant company and other of its employes had seen this ladder. The superintendent of the company was present at one time while the bridge was being raised, and the ladder was then attached to the bridge. There is nothing to show that the use of this ladder was ever interfered with by the defendant company. From all of the evidence, it is clear that the footpath and ladder were seen by some of the defendant's employes, and that they were so situated as to be seen by any employe of the defendant company engaged in the operation of its trains.
We held in Murphy v. Railway Co., 38 Iowa 539, that an instruction in the following language was proper: "If you find from the evidence that the deceased had for a considerable time prior to...
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