Adams v. Chi., M. & St. P. Ry. Co.

• Decision Date: 28 January 1895
• Citation: 93 Iowa 565,61 N.W. 1059
• Court: Iowa Supreme Court
• Parties: ADAMS v. CHICAGO, M. & ST. P. RY. CO.

93 Iowa 565

61 N.W. 1059

ADAMS

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Jan. 28, 1895.

Appeal from district court, Woodbury county; A. Van Wagenen, Judge.

S. H. Adams was killed by being knocked down and run over by one of defendant's locomotive engines in its switch yards at Sioux City. The plaintiff is his widow, and administratrix of his estate. This action was brought to recover damages for causing the death of Adams. From a judgment upon the verdict of a jury the defendant appeals. Reversed.H. H. Field and Taylor, Shull & Farnsworth, for appellant.

John Wallace and R. H. Brown, for appellee.

ROTHROCK, J.

1. Adams was what was known as “night yard master,” and had charge of the making up of freight trains and switching cars in the yard. His watch, or time of service, commenced at 6 o'clock in the evening. On the evening of the 5th of August, 1891, he went to his work at the usual time, and at the time of his death, which occurred at about 7 o'clock, and beforethe dusk of the evening, he was in charge of a switching crew, consisting of an engineer, fireman, and one or two switchmen, making up a freight train. The switch engine was drawing 8 or 10 freight cars, and the deceased was riding on the footboard at the rear of the engine. He left the engine for the purpose of signaling for a stop to uncouple and throw some cars backward on another track. He went quickly across, and stood between the rails on another track, and was in the act of signaling to the engineer on the switch engine, when he was struck by a backing engine on the track on which he was standing, knocked down, run over, and killed. It is charged in the petition that the backing engine was negligently operated, in that it failed to give signals for danger, and to stop the same in obedience to signals given for that purpose; that the engine was backing at a rate of speed in excess of six miles an hour, in violation of an ordinance of the city; and that the engineer in charge of the engine willfully and negligently failed to stop the same after he discovered the perilous position of Adams; and that, if the engine had been promptly stopped when Adams was struck by the rear end of the tender, and went under, he would not have received a mortal injury. The defendant answered by a general denial of negligence, and a denial of the averment of the petition that Adams was free from contributory negligence.

It is not necessary to give a detailed description of the yards and railroad tracks at the place where the casualty occurred. The grounds upon which we place our decision do not require that more than a general statement be made. The two main tracks of the defendant's railroad where the accident occurred are laid east and west on Second street. This street is crossed at right angles by Steuben street, Lafayette street, Clark street, and other streets. Second street, at the place of the accident, and for some distance east and west, was given up to railroad purposes. There was no general travel along it. The switch engine on which the deceased was riding came up from the southeast on a side track, and onto the south main track, and was moving west. The road engine by which Adams was killed was backing down on the north main track from the west, so that the two engines were moving in opposite directions. A short time before the accident a regular passenger train came in from the east along the northerly track, and passed on west some distance to the passenger depot, where the engine was detached, and backed down over the same track to the roundhouse, and it was on its way to the roundhouse when it struck Adams. This was the usual and ordinary method of operating the passenger train and engine. The train was not belated on that evening. It may have been a very few minutes late. It was due at the passenger depot at 6:35 p. m., and the accident happened at 7 o'clock, or very near that time. There is some contention in behalf of appellee that the return of the engine was from 15 to 25 minutes after its usual time. But this is not sustained by the evidence. There is no question but that the deceased knew that the engine backed down a few minutes before or after 7 o'clock. He was an experienced railroad operative, and had been night yard master in that yard for about 18 months. There is a conflict in the evidence as to the exact point on the track where Adams got off the footboard of the switch engine. There is also a dispute as to the speed of the road engine, and as to how far it was distant from Adams when he was on the track where the fatality occurred. The very decided weight of the evidence, so far as the number of witnesses is concerned, is that the engine was not backed at a speed exceeding six miles an hour, and that the fireman was in his proper place, and ringing the bell, on the engine, for some distance before it reached the place where it struck Adams, and that Adams came on the track not to exceed ten feet from the rear of the tender. A majority of the witnesses fix it at a much less distance. The fact is apparent from all the evidence that he was so close to the engine that from the time he went on the track till he was struck the lapse of time was so inconsiderable that it was practically impossible to estimate it by seconds. And there is a decided preponderance of evidence that both the engineer and fireman on the engine were in their proper places, and on the lookout backwards, and that the engine was stopped as soon as it could be after the firemen discovered Adams passing onto the track. It will be observed from this brief...