Annacker v. Chi., R. I. & P. R. Co.

• Decision Date: 22 October 1890
• Citation: 81 Iowa 267,47 N.W. 68
• Court: Iowa Supreme Court
• Parties: ANNACKER v. CHICAGO, R. I. & P. R. CO.

81 Iowa 267

47 N.W. 68

ANNACKER

v.CHICAGO, R. I. & P. R. CO.

Supreme Court of Iowa.

Oct. 22, 1890.

Appeal from district court, Polk county; MARCUS KAVANAUGH, Judge.

Action to recover damages for the alleged negligence of the defendant's employes in backing a train of cars propelled by an engine against the plaintiff's wagon and horses, at a street crossing, whereby they were injured, and whereby the plaintiff received personal injuries. The case was tried to a jury, and a verdict returned in favor of the plaintiff for $2,175. Defendant's motion for new trial was overruled, and judgment entered on the verdict. Defendant appeals.Thomas S. Wright and Cummings & Wright, for appellant.

Cole, McVey & Clark, for appellee.

GIVENS, J.

1. Appellant's first contention is that the court erred in submitting as an element of negligence the speed of the train, because not charged in the petition, nor included in the statement of the issues made by the court, and because there was no evidence upon which to submit the question. The allegation in the petition is that “the defendant carelessly and negligently caused the rear end of a freight train, propelled by an engine, to approach a street crossing from the east, and then and there to pass rapidly over the south one of the tracks of defendant.” In stating the issues, the court followed substantially the language of the petition. The exigencies of the service requires that trains of cars be frequently propelled backwards. To say that a train of cars has been so propelled does not charge negligence. Whether to so move a train is negligence must depend upon the circumstances. Omit what is stated as to the speed of the train, and you have no circumstance charging negligence. It would not be negligence for the defendant to cause the rear end of a freight train, propelled by an engine, to approach a street crossing. It is the fact of so approaching it, and passing “rapidly over,” that constitutes the negligence charged in this part of the petition. Such being the construction, we hold that the court properly stated the issue. There were two classes of evidence relating to the speed of the train,--the opinion of witnesses as to its speed, and evidence as to the time it started, the distance it traveled, and force with which it struck the wagon and horses, and the distance it moved after striking them. Under the state of the pleadings and proofs, it was the duty of the court to submit this question to the jury.

2. Appellant complains of the refusal of the court to give an instruction eliminating from the case the claim of negligence based upon the absence of a flagman, for the same reasons as urged for withholding from the jury any inquiry as to the speed of the train. It is charged in the petition that the defendant neglected to have a watchman at the street crossing to give warning of the approach of said train. Here again the court followed the language of the petition in stating the issue. It appears without controversy that this accident occurred on the morning of December 26, 1887, a few minutes after 6 o'clock; that it was a dark foggy morning; that no watchman or flagman was there on duty at the crossing; that defendant's flagman did not come on duty at that crossing until 7 o'clock in the morning; that there was considerable travel over the crossing as early as 6 o'clock; and that several trains went out from defendant's depot, near by, over said crossing about 6 o'clock each morning. Plaintiff states that he knew there was no watchman there at that hour. Appellant's contention is that, as he knew there was no watchman there, and did not depend upon one, but looked for himself, and, by so looking, he could see all that the watchman would have seen, the presence of a watchman would have been no...