Banning v. Chi., R. I. & P. Ry. Co.
| Decision Date | 06 October 1893 |
| Citation | 89 Iowa 74,56 N.W. 277 |
| Court | Iowa Supreme Court |
| Parties | BANNING v. CHICAGO, R. I. & P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Audubon county; Walter I. Smith, Judge.
Action against the defendant for damages for a personal injury to J. E. Banning, which resulted in his death. From a verdict and judgment for plaintiff, defendant appeals.Nash, Phelps & Green and Wright & Baldwin, for appellant.
Theo. F. Myers and F. E. Brainard, for appellee.
1. Plaintiff's intestate, J. E. Banning, a man 53 years old, was on December 4, 1890, injured by a car of defendant, which was being kicked along and upon its side track at Audubon, Iowa. He died on the 8th of said month. Defendant's depot in said town is situated at the end of Broadway street. At the east side of defendant's right of way, and running past the end of said street, there is a side track of defendant. There is a sidewalk on the south side of said street leading to the defendant's depot, which crosses the side track before mentioned, and it was at this crossing that the accident occurred. It appears also that this is the only walk from the town which extends to the depot. There are a warehouse and some coal sheds south of said walk, and adjacent to said side track, which obstruct the view of one approaching the depot on said sidewalk as to trains of defendant south of said crossing and depot, which can only be seen after passing said buildings. It appears that the train was to leave at 10 o'clock A. M. Plaintiff's intestate was going to the depot for the purpose of taking passage thereon. At about a half hour prior to the time for the departure of the train on December 4, 1890, plaintiff's intestate went west on the sidewalk towards the depot. He was running, or, as some of the witnesses say, was on a “dog trot.” As he approached said track, a freight car of defendant, which had been detached from the train, was being kicked along and upon said side track, and was crossing at the foot of Broadway and the sidewalk when the plaintiff's intestate arrived at the same point. He ran against the car, and was knocked down, and dragged for some distance. The particular acts of negligence charged against the defendant are: First, the constructing of its side track so near the warehouse and sheds; second, that the switch track was sunk where it crossed the street, so as to leave a ridge of dirt about a foot high on the east side of it; third, failure to keep a flagman or watchman at the place where the side track crossed the sidewalk; fourth, that no brakeman was on the detached car; fifth, that the train which was propelling the car was running at a negligent rate of speed. It appeared that deceased was a farmer and carpenter; that he was not familiar with the depot grounds of defendant, though he had come to Audubon on the train, and hence must have had some knowledge as to the defendant's tracks and grounds; that the sidewalk on which he was going to the depot when injured was built and maintained by the defendant, and had been used by the public for more than 10 years as a public crossing; that he died as a result of the injury. Damages were claimed in the sum of $10,000. Defendant denied generally, and alleged that the injury complained of was caused and contributed to by the deceased. At the conclusion of the testimony, defendant moved the court to direct a verdict for it, which motion was overruled. Over defendant's objection, the jury were permitted to view the locality of the accident. Certain special interrogatories, asked by both parties, were submitted to the jury.
2. Error is assigned on the refusal of the court to direct a verdict for the defendant. The motion to direct a verdict was based upon the negligence of deceased, which contributed to the accident, and a failure to establish negligence on part of the defendant. It appears that, when Banning was running towards the depot, he was warned that a train was approaching, but he did not heed the warning. The evidence, without conflict, shows that the whistle was sounded several times, and the bell rung. He paid no attention to these signals of danger, if he heard them, but kept on until he collided with the moving car. He knew he was approaching a railroad track, always a place of danger, and it was his duty, even in the absence of any special warning, or of the giving of signals of those in charge of the train, to use his sense of hearing as well as of sight. Whether or not he heard the train will never be known. It does not appear that his sense of hearing or seeing was in any way impaired, and, if he had stopped and listened, he would have certainly heard the train, and avoided the accident. The slightest observation would have shown him that his duty to listen was all the more necessary by reason of the obstructions which would prevent him from seeing the train until it had arrived at the street line; yet he took no care to protect himself from danger by stopping and listening, but rushed heedlessly on to his death. Some six men, besides the railroad employes, testified to the blowing of the whistle and ringing of the bell. They all knew a train was near, and some of them were waiting for it to pass when deceased was approaching the track. But the signals given by the train were not the only warnings that deceased had. Before he reached the train he was told to hold up; that a train was coming. He looked towards the speaker, made no reply, and continued running towards the track. As others, no more favorably situated than he, heard the signals of the approaching train, it must be presumed that, if he had listened, he also would have heard them. There is no evidence that deceased took any steps whatever to ascertain if the train was coming. Even though he was approaching a railroad depot for the purpose of taking passage upon a train, still he...
To continue reading
Request your trial