Barry v. Burlington Ry. & Light Co.

• Decision Date: 21 January 1903
• Citation: 93 N.W. 68,119 Iowa 62
• Parties: RICHARD D. BARRY, Administrator of the Estate of Richard T. Barry, Deceased, Appellant, v. BURLINGTON RAILWAY & LIGHT COMPANY
• Court: Iowa Supreme Court

93 N.W. 68

119 Iowa 62

RICHARD D. BARRY, Administrator of the Estate of Richard T. Barry, Deceased, Appellant, v. BURLINGTON RAILWAY & LIGHT COMPANY

Supreme Court of Iowa, Des Moines

January 21, 1903

Appeal from Des Moines District Court.--HON. W. S. WITHROW, Judge.

ACTION by an administrator to recover damages for the death of his decedent, a boy of about sixteen years of age, alleged to have been caused by the negligence of servants of defendant operating an electric street railway car, whereby the said car, being operated on the tracks of the defendant, was run against and over the deceased, causing his death. At the close of the evidence for plaintiff, defendant's motion to direct a verdict in its favor was sustained, and judgment was thereupon rendered for defendant, from which plaintiff appeals.

Reversed.

J. M Mercer and S. L. Glasgow for appellant.

Stutsman & Stutsman and Walch Bros. for appellee.

OPINION

MCCLAIN, J.

The evidence for plaintiff tended to show that the deceased attempted to cross defendant's street car track on one of the public streets of the city of Burlington in front of one of defendant's electric cars, moving at the rate of about six miles an hour; that there was nothing to prevent deceased from seeing the approaching car, had he taken any precaution for his own safety; that he was struck by the car while on the track; that he threw up one arm, and with it caught the front part or dashboard of the car, and was carried some distance (perhaps twenty feet), when the car passed over him; and that the car might have been stopped in from five to twelve feet. The testimony of witnesses as to the distance from where the car struck deceased to the point where the body was found is conflicting, but it is sufficient to say that the evidence tends to show the deceased to have been struck a few feet west of a certain street crossing (the car going west), and that his body was found some twenty or twenty-five feet west of the crossing, after having been run over by the car.

The contention for appellant is that it should have been left to the jury to determine whether, in the exercise of reasonable care on the part of the motorman, the danger to deceased could have been discovered in time to stop the car before the deceased was run over, while for appellee the contention is that there is no evidence that the motorman knew of the danger of deceased in time to have stopped the car before the fatal injury was inflicted.

It is well settled in this state, and by the weight of authority generally, that where one is injured by being run over by a railroad train, and his own negligence has contributed to bring about the injury, the railroad company is liable only in case its employes, after becoming aware of the danger, have been negligent in not using reasonable care to avoid the injury. Keefe v. Railway Co., 92 Iowa 182, and cases cited; Orr v. Railway Co., 94 Iowa 423; Kelley v. Railroad Co. 118 Iowa 387. But those cases, so far as they hold that the duty to exercise care to avoid injury to one who is guilty of contributory negligence in putting himself in danger arises only when the danger becomes actually known to the employes of the railroad company, do not relate to circumstances involving a duty to look out in general for the safety of others. The distinction between the care required in connection with the running of a railway train operated on a right of way, as to which the railroad company enjoys the exclusive right of possession, and the care which should be exercised in the running of a street car operated in the public streets of a city, is manifest. Those operating a street car under such circumstances are bound to do so with regard to the safety of persons rightfully upon the public streets, for the street car track, notwithstanding its additional use, remains a part of the street. This distinction is well recognized by the authorities. See Railway Co. v. Cooney, 87 Md. 261 (39 A. 859); Railway Co. v. Arnreich Co., 78 Md. 589 (28 A. 809); Bergman v. Railway Co., 88 Mo. 678; Weitzman v. Railway Co. (Sup.) 53 N.Y.S. 905; Kelley v. Railroad, 20 Ky. L. Rep. 471 (46 S.W. 688;) 2 Thompson, Negligence, sections 1476, 1477.

In view of the duty which therefore rested on the motorman of defendant's car, in the case before us, to be on the lookout to avoid injury to persons using the public street we think that in determining whether he did...