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

• Decision Date: 25 October 1892
• Citation: 53 N.W. 399,86 Iowa 677
• Parties: ANDREWS v. CHICAGO, M. & ST. P. RY. CO.
• Court: Iowa Supreme Court

86 Iowa 677

53 N.W. 399

ANDREWS

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

Supreme Court of Iowa.

Oct. 25, 1892.

Appeal from district court, Chickasaw county; L. O. HATCH, Judge.

Action for personal injury resulting in the death of plaintiff's intestate. Judgment for the plaintiff, and the defendant appeals.John T. Fish and Noble & Updegraff, for appellant.

Spensley & McIlhon and J. R. Bane, for appellee.

GRANGER, J.

On the night of April 4, 1888, a passenger train on defendant's road was wrecked at a point west of New Hampton, in Chickasaw county, and the plaintiff's intestate was killed, and this action is to recover damages therefor. The accident occurred near the Middle Wapsie river, where the road passes along an embankment from 5 to 7 feet high, and between two bridges that are some 800 feet apart; one of the bridges being across the Wapsie river, and the other known as the “Dry Bridge.” The accident happened about 5 o'clock in the morning of the 5th of April. The following testimony from a witness for plaintiff, who lived near the accident, will show something of the situation, and the facts will be important in connection with points to be considered. H. H. Reckers, for plaintiff, testified: “I know the bridge. I live on the Wapsie, three fourths of a mile north of bridge, and five miles west of New Hampton. I was at home at the railroad accident there, April 5, 1888. It had been kind of thawing weather for a day or two. There was quite a good deal of snow on the ground. It had thawed up to a kind of slush, but was not thin enough to run yet. On the 4th of April it looked cloudy, and rained quite a lot,--considerable during the night. There was quite a little north wind in the morning. The rain turned the slushy snow to water, and made it run. The frost was not much out of the ground. The ice was in the creek the day before the wreck, and, the night before, it moved; that is, it rained, and where it had an escape it went out. In some places it stayed in the brush. It was a rainy, foggy night; as foggy as I have seen for a good many years. I went to the wreck between 4 and 5 o'clock. It had got a little light, but was still foggy, but not so much as in the night. I approached wreck on east side. The water at north side was anyway halfway up on the stringers, and I think upon, if not over, the ties. I crossed Dry bridge, and came to wreck. I just came to a spot where there was broken ties; and on the north side of track lay a large cake of ice. It was kind of slid upon the track, and the north end of it was braced down in the water. It was so close to north rail that one couldn't put his foot between the rail and the cake of ice. This ice laid, I should think, three or four car lengths east of locomotive. It was east of sleeper, and between sleeper and bridge. If I remember right, where the ice was the south rail was entirely torn off for a ways. Right where the ice was the flanges of the rails were off. The bolt heads seem to have been cut off or broken off along the rails, and it just spread apart and bent the rails up. The ice was right between the sleeper and the first car,--that is, west of the sleeper. When I went there the Dry bridge was bent over to the south four or five inches. There was ice lying against the bridge. I noticed the condition of the ties that had been disarranged by the wreck.”

The allegations of negligence against the company are: First, in maintaining its road; and, second, in running its trains at too high a rate of speed.

1. The defendant asked the following instruction: “ Twelfth. The plaintiff has offered evidence bearing upon the condition of the ties in the roadbed at the place where the engine left the track. If you find that the engine came in contact with a large body of ice, and that such body of ice caused the derailment of the train, then you are to disregard all the evidence bearing upon the condition of the ties.” The instruction was refused, and the court gave the following: “ Ninth. First, as to the alleged negligence of defendant in failing to keep its track in proper repair. It is claimed on the part of the plaintiff that the track was out of repair in consequence of defendant's neglect to remove decayed and unsound ties, and supply them with sound ones. It was the duty of the defendant to take due care to see that the ties in use are not permitted to decay to such an extent as to endanger the safety of its passengers, and an omission of this duty is a negligent failure to keep the road in proper repair. It is for you to say, in the light of the evidence, whether or not the defendant was guilty of negligence in regard to the ties at the accident in question.” The giving and refusal of these instructions are grounds of complaint. The ground of appellant's contention in this respect is that the record fails to show a condition or state of the evidence to justify the court's instruction, it being the claim that it appears conclusively from the record that the cause of the accident was the body of ice on the track, because of which the accident occurred, and would have occurred independent of any condition of the ties; that sound ties would not have avoided the accident, nor changed the result as to plaintiff's intestate. Of course, if the record sustains the claim, the instruction is erroneous, because then the condition of the road, other than as to the ice thereon, could not have caused the accident. But we cannot agree with appellant's conclusion. It is very probable that the accident would not have occurred except for the ice, but that the ice would have caused the accident with any condition of the roadbed is so much a matter of doubt, under the evidence, as to make it a question for the jury. If, but for the rotten condition of the ties, the train would not have been derailed, then the accident was the result of a failure to properly maintain the road. The cake of ice and its situation as to the track are some what differently described by the witnesses, and its situation when struck by the train was a question of fact, and of such doubt, under the evidence, that it was a proper matter for the jury to decide. It was not error for the court to give the instruction. The court said to the jury that under the pleadings and the evidence it could not find the defendant negligent because of the ice on the track, and confined the inquiry to negligence in failing to keep the road at the place of the accident in proper repair, and in running its trains too rapidly. The court also said to the jury in its fourteenth instruction: “The burden is also on the plaintiff to prove by a preponderance of evidence that the negligence proven caused the death of the plaintiff's intestate.”To recover, then, under the instructions, the jury must find that the accident was a result of negligence in one of the two particulars stated. The court further said to the jury: “ Third. In order to recover anything in this action, the plaintiff must prove by a preponderance of evidence that the defendant, by its agents and employes, was guilty of the negligence aforesaid, or...