Allen v. Ames & C. Ry. Co.

• Decision Date: 26 October 1898
• Citation: 76 N.W. 848,106 Iowa 602
• Court: Iowa Supreme Court
• Parties: ALLEN v. AMES & C. RY. CO.

106 Iowa 602

76 N.W. 848

ALLEN

v.AMES & C. RY. CO.

Supreme Court of Iowa.

Oct. 26, 1898.

Appeal from district court, Story county; S. M. Weaver, Judge.

Action at law to recover damages for injuries sustained by plaintiff growing out of the alleged negligence of the defendant in backing its train upon him without warning or signals, and without having a lookout at the rear end of the train. Trial to a jury, resulting in a verdict and judgment for plaintiff in the sum of $7,000. Defendant appeals. Affirmed.McCarthy & Lee and J. L. Carney, for appellant.

G. A. Underwood and J. F. Martin, for appellee.

DEEMER, C. J.

Defendant is a railway corporation operating a line of road about two miles long between the city of Ames, in Story county, and the State Agricultural College. Its motive power is steam, and it not only transports passengers, but is a carrier of freight as well. One of its terminals and its depot and train shed is adjacent to what is known as “Onondaga Street,” in the city of Ames. This street runs nearly east and west, and is intersected just west of the depotby what is known as “Duff Street.” David Allen, the plaintiff, a boy of about six years of age, was passing west along or near Onondaga street, going from school to his home, when he was struck by a coach which was being backed from the train shed out onto the main line of the defendant's road. Prior to the time the car was set in motion it had been standing partially in the street, with the engine so attached as to push it out onto the main line. It is claimed that the engineer gave no signal or alarm before starting, and the company was negligent in not having a lookout upon the coach. This question of negligence was properly submitted to the jury, and with its findings we cannot interfere.

Appellant contends that plaintiff was a trespasser at the time he was struck by the train, and that it owed him no duty except the negative one of not injuring him willfully and maliciously. There is much conflict in the evidence regarding the place where the boy was when injured, and it was a fair question for the jury to determine whether he was within the lines of the street, or so close to it as that the company owed him the duty of watchfulness. The jury evidently found that he was within the boundaries of the street, and, as the verdict has substantial support in the evidence, we cannot interfere.

Again, it is said that the evidence shows without dispute that plaintiff was a trespasser, and therefore cannot recover. As we have said, there was a conflict in the evidence upon this point, and we do not interfere with the verdict in such cases.

Claim is made that plaintiff was guilty of contributory negligence in going in front of a moving train. As the boy was a mere child, it was a question for the jury to determine whether he exercised such care as may reasonably be expected from a child of his age, under the circumstances disclosed in evidence. This question was properly submitted to the jury, and it evidently found against appellant's contention.

Complaint is made of the court's refusal to give certain instructions asked by appellant, and also of certain instructions given. We need not set them out. The requests, in so far as they contained correct rules of law, were embodied in the charge, and those given enunciated the rules applicable to such cases in a clear and comprehensive manner.

Error is predicated upon the admission of the Carlisle tables in evidence. We think they were properly received. The injury was permanent, and plaintiff's expectancy of life was a material injury. Knapp v. Railway Co., 71 Iowa, 41, 32 N. W. 18. The case of Nelson v. Railroad Co., 38 Iowa, 564, relied upon by appellant, was overruled by the Knapp Case.

Mrs. William Allen, the plaintiff's mother, was allowed to testify, over defendant's objections, that she had tried to arrange to have David kept at school with the other children, so that he would not have...