Beem v. Tama & T. Elec. Ry. & Light Co.

• Decision Date: 28 January 1898
• Citation: 73 N.W. 1045,104 Iowa 563
• Parties: BEEM v. TAMA & T. ELECTRIC RAILWAY & LIGHT CO.
• Court: Iowa Supreme Court

104 Iowa 563

73 N.W. 1045

BEEM

v.TAMA & T. ELECTRIC RAILWAY & LIGHT CO.

Supreme Court of Iowa.

Jan. 28, 1898.

Appeal from district court, Tama county; G. W. Burnham, Judge.

Action at law to recover for injuries to the plaintiff's intestate which caused his death, and which are alleged to have been the result of negligence on the part of the defendant. When the evidence on the part of the plaintiff had been fully submitted, the jury, by direction of the court, returned a verdict for the defendant, and judgment was rendered in its favor for costs. The plaintiff appeals. Affirmed.T. Brown, for appellant.

Struble & Stiger, for appellee.

ROBINSON, J.

In September of the year 1895, the defendant was engaged in operating an electric railway between points in Toledo and Tama. The railway passed through a portion of McClellan street, which extends from north to south, over a ridge. At a point from 400 to 500 feet south of the crest of the ridge, McClellan street is intersected by Brice street, which extends from east to west. On the 12th day of the month named, A. B. Beem, the decedent, was struck by a train of the defendant in McClellan street, at a point north of, but near, Brice street, and received injuries which caused his death within a short time. The train in question was composed of a freight car, and an electric motor behind it. The plaintiff alleges that the defendant was negligentin operating its train with the freight car in front of the motor, in not having a person on the car to keep a lookout for persons on the track, in not having the car supplied with a brake, in running the train at a higher rate of speed than was permitted by the ordinance of the city of Tama, in which the accident occurred, and in not stopping the train after the peril of the decedent was known, and before he was struck. The evidence for the plaintiff shows the following facts: At the time of the accident the decedent was 71 years of age, and quite deaf. A few moments before the collision he was seen to be walking southward on McClellan street, parallel to, and a short distance east of, the railway track. Just before the collision occurred, he turned, and walked in a southwesterly direction, to cross the track, and was then struck. He is not shown to have looked towards the approaching train, although he could have seen it for a distance of 550 feet before it reached the place of the accident. He resided west of the railway track, and not far from the place where he was hurt. The grade of the railway descended from the crest of the ridge southward, and, although the evidence as to the speed of the train is not satisfactory, it may be conceded that the jury would have been justified in finding that it was greater than the city ordinance permitted, and that the accident was due in part to negligence on the part of the defendant. It remains to be determined whether the jury would have been authorized to find that the decedent was...