Beatty v. Cent. Iowa Ry. Co.

• Decision Date: 22 April 1882
• Citation: 58 Iowa 242,12 N.W. 332
• Parties: BEATTY, ADM'X, v. CENTRAL IOWA RY. CO.
• Court: Iowa Supreme Court

58 Iowa 242

12 N.W. 332

BEATTY, ADM'X,

v.CENTRAL IOWA RY. CO.

Supreme Court of Iowa.

Filed April 22, 1882.

Appeal from Powsehiek district court.

The plaintiff, as administratrix of the estate of John W. Beatty, deceased, brings this action to recover damages for the death of said John W. Beatty, occasioned by a train of cars operated by the receiver of the Central Railroad of Iowa. Under the direction of the court the jury returned only a special verdict. Both parties filed a motion for judgment upon the special findings. The court overruled the plaintiff's motion for judgment, and sustained that of the defendant. The plaintiff appeals.John F. Lacy and Redman & Carr, for appellant.

H. E. J. Boardman and A. C. Daly, for appellee.

DAY, J.

The jury returned the following special verdict:

(1) Was the plaintiff's intestate killed at the point where the railroad crosses the public highway substantially as stated in the petition. Ans. Yes.

(2) Was the railroad then operated and under the control of Morrill as receiver? Ans. Yes.

(3) How did the plaintiff's intestate come in collision with the engine? Ans. He was carried there by an unmanageable horse.

(4) Was the crossing and its immediate approaches in a suitable and safe condition? Ans. It was.

(5) If you say the crossing was not in a suitable and safe condition, then in what particular was it lacking?

(6) Does the railroad cross the highway on a level with it about the point of crossing or otherwise? Ans. Nearly on a level.

(7) How far north of the immediate crossing does the defendant's track or ground by it actually occupied first enter upon the ground of the highway? Ans. About 20 rods.

(8) From the point where the railroad track first enters upon the highway south to the crossing could the railroad company reasonably have graded a track for wagons further to the west on the highway? Ans. Yes.

(9) Was the highway passable along its west line without such grading or preparing? Ans. No.

(10) How far north of the immediate crossing is the point where the plaintiff's intestate mounted his horse to ride down to the crossing? Ans. About 20 rods.

(11) At the place he mounted his horse did he have a view of the railroad north? Ans. No.

(12) From the point where he came upon the highway south of the crossing was the railroad in plain view to the side of the road, or was the view obstructed? Ans. From the crossing north, for a distance of 292 feet, the track was in plain view; the remainder of the distance the track was entirely obscured.

(13) How far north from the crossing is the point where the mounds of earth thrown up in grading first occur? Ans. Twenty or twenty-one rods.

(14) If the track of the highway had been graded or pushed to the west line of the highway, would the accident or injury have occurred? Ans. It would not.

(15) Did the deceased, when he entered upon the highway to come down to the crossing, know that the railroad crossed there, and did he know of the character and condition of the crossing and road leading down to it, and the proximity of the road? Ans. He did.

(16) Did the deceased look for the train, or make any effort to see if a train was approaching? If you say he did, then at what point was he, and what did he do to ascertain whether a train was coming? Ans. The evidence does not show whether he did or not.

(17) What was the character of the horse the deceased rode as to disposition and training? Ans. A spirited young horse, not thoroughly trained.

(18) At and before the accident and collision had the horse become frightened, and had the deceased lost control of him, and if so, how far north of the plank crossing had he thus lost control of the horse? Ans. The horse became frightened and the deceased lost control of him at a distance of from 12 to 15 rods from the crossing.

(19) When riding down to the crossing, was the deceased exercising due care, aside from keeping a lookout for an approaching train? Ans. He was.

(20) When the railroad was constructed by the company, did it appropriate for its track any part of the traveled track of the highway as then traveled? If so, for what distance north of the plank crossing, and what did it do to restore such traveled track? State fully. Ans. From 12 to 15 rods north, and made a roadway with dirt 12 to 19 feet wide, and 9 feet high, on the west side of said fill.

(21) Was the track in the highway used by Beatty from the school-house north? Ans. It was.

(21 1/2) What, if anything, had the railroad company, when constructing its track, done towards making this track for travel on the highway? Ans. They made a cut through the hill and a fill on the flat.

(22) Was the injury to Beatty caused by any defect in the crossing or its immediate approach, or was it because the traveled track on the highway turned to make the crossing over the railroad track. and while running parallel with the railroad track the two were in close proximity? Ans. Caused by the proximity of the two roads north of the immediate crossing.

(23) What damage did the estate of Beatty sustain by reason of his death? Ans. $5,000.

(24) Did the Central Iowa Railway Company purchase the railroad under the decree of foreclosure, a certified copy of which is introduced, and did it take possession under said decree? Ans. Yes.

(25) Was the claim presented to the Central Iowa Railway Company after it came into possession of the raiload under said decree, and was payment refused? Ans. Yes.

The following diagram shows the relative situation of the railway and of the highway, and illustrates the special verdict:

IMAGE

The railway was constructed in 1871. At the time this railroad was constructed the provisions of the statute upon the subject were as follows: “Any such corporation may raise or lower any turnpike, plank-road, or other highway for the purpose of having its highway pass over or under the same; and in such cases said corporation shall put such highway, as soon as may be, in as good repair and condition as before such alteration.” Revision, § 1321; Code of 1873, § 1262. “Every corporation constructing or operating a railway shall * * * construct, at all points where such railway crosses any public highway, good, sufficient, and safe crossings and cattle-guards.” Revision, § 1331; Code of 1873, § 1288. The jury have found specially that the crossing and its immediate approaches were in a suitable and safe condition. They have not found that there was anything negligent or improper in the manner in which the highway was...