Baker v. Chi., R. I. & P. Ry. Co.

• Decision Date: 29 May 1895
• Parties: BAKER v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

95 Iowa 163

63 N.W. 667

BAKER

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

Supreme Court of Iowa.

May 29, 1895.

Appeal from district court, Davis county; H. C. Traverse, Judge.

Action for personal injuries. Judgment for plaintiff, and the defendant appealed. Reversed.Robert Mather, Wm. McNett, and Carruthers & Rominger, for appellant.

Eichelberger & Taylor, for appellee.

GRANGER, J.

Plaintiff is the administrator of the estate of Frank Mitchell, deceased. Mitchell was killed on the defendant's line of road about the 24th day of November, 1892. The circumstances are substantially as follows: Mitchell was at the time, and for about five months had been, a section hand on defendant's road on the section where the accident occurred, which section was some 6 1/2 miles in length, the town of Unionville being its eastern limit. Mitchell resided near defendant's line of road, and about 3 1/2 miles west of Unionville. He was not regularly a “track walker,” that is, one whose duty it was to walk along the line and inspect the track, but the foreman of the section had, on the day before the accident, directed Mitchell to, the next morning, walk the track, and, on the morning of the day of the accident, Mitchell walked west from his home on the track to the end of the section, and then back to Unionville, reaching there about 10 o'clock a. m., where he worked in the yards with the rest of the section gang at laying rails the rest of the day. About 5 o'clock he quit work to go home, and while near the yard limits at Unionville, and after he had started home, he was struck by a construction train, and killed. No one saw the accident, and the fact of it was not known until the next morning, when the body was found on the track. The train that killed him passed the point where the body was found about 5:22 o'clock the evening before. The train that struck Mitchell had been standing in the yards at Unionville for some time before the accident, and, while standing there, a passenger and a freight train had passed Unionville, going east. After these trains had passed, the construction train moved east some two or three miles, to get a construction gang of men and take them to Centerville. Centerville is west of Unionville, and the train, after the gang was on board, started west, passing Unionville without stopping, and struck Mitchell as we have stated. While the train did not stop at Unionville, it “slowed down,” so that the conductor, who was at the station, gave to the engineer his orders, and himself boarded the caboose of the train. The train carried a headlight, and, as it approached Unionville from the east, it could be seen from the point where the body was found nearly a mile, and then continuously to the place of the accident, except for about 300 feet, where the view was obstructed by what is called a “grain house.” From this house to where the body lay is 1,300 feet, and for that distance there is no obstruction to the view. The negligence charged against the defendant is in running the train at a high and dangerous rate of speed, and a neglect to give the proper signals; and the jury found that the defendant in running the train was negligent, and the finding has support in the evidence. After the testimony was closed, the defendant asked the court to instruct the jury to find for the defendant, which the court refused, and appellant now urges that it should have been given on the ground of the contributory negligence of Mitchell. Some other facts will be noticed in the consideration of the case.

It seems to us that there is an entire absence of evidence tending to show a want of contributory negligence, which the plaintiff must show to recover. The deceased was last seen about 550 feet from where his body was found, walking on the track towards his home, and this was just before the train passed, and the inference is quite clear that the train killed him. But as to his own care or caution we find no evidence whatever. Some claims are made by appellant which we will notice. The jury returned some 35 special findings, some of which are important in this connection. It found that Mitchell was rightfully on the track when he was struck, and that he was exercising ordinary care under all the circumstances. It also found that he had good hearing and eyesight, and that a person of fair hearing could have heard the rattle of the train about 400 feet away, when west of the depot.

If it is claimed, as it must be to make it significant, that the finding that Mitchell was rightfully on the track means that he was there in such a way that the persons operating the train were required to exercise care with reference to him, as they would be required to do as to persons doing duty upon the track, the finding cannot be sustained, for there is absolutely no evidence to support it. The evidence is that about 5 o'clock the foreman told Mitchell that it was time to quit, and for him to go home, and to again walk the track the next morning. Mitchell quit work, left his bucket, a wrench, and his overcoat in the grain house, and went over town, and then came back, and took the things from the grain house, and started home. It was a “foggy, misty” night, and getting dark. One Jimmie Underwood, a lad 15 years old, was working for the company, and was sent by the agent to put out the switch lights, and he went first to the west light in the yard, and then came east, and on his way met Mitchell, and he was the last person who saw him alive. He said in his testimony: “First one I put up at west end of stock yards. Next one I put up at west end of passing track. I walked on the side track. I knew the construction was liable to come through. I was walking on the north track when I met Mitchell. He was going west. He was carrying his overcoat on one arm and dinner bucket on the other. He was walking at his usual pace, ‘kind of fast,’ going west on the main track between the rails. I knew the train was coming. Saw the headlights. It was on the top of the hill east of the depot; about a mile, I expect. There is a little curve west of the depot. Did not hear the train whistle for the station. Do not remember hearing the bell ring. Do not remember being called on by the agent and Mr. Stackhouse seven or eight days after the accident. I remember talking to Stackhouse. Do not remember telling him I heard the bell ring. Don't think it did. Do not remember noticing the sound of the train. Do not know that I was paying any attention to the sound. If I heard it, it was not impressed upon my mind. If I had heard the whistle east, it would not have impressed my mind. All I am able to say is, if it whistled, I do not remember it. Mitchell was walking in the middle of the main...