Booth v. Union Terminal Ry. Co.

• Decision Date: 27 October 1904
• Parties: BOOTH v. UNION TERMINAL RY. CO.
• Court: Iowa Supreme Court

126 Iowa 8

101 N.W. 147

BOOTH

v.UNION TERMINAL RY. CO.

Supreme Court of Iowa.

Oct. 27, 1904.

Appeal from District Court, Woodbury County; G. W. Wakefield, Judge.

Suit to recover damages for the death of Fay Booth. There was a directed verdict for the defendant, and from a judgment thereon the plaintiff appeals. Reversed.J. L. Kennedy, E. A. Morling, and F. C. Davidson, for appellant.

Charles A. Dickson and T. F. Bevington, for appellee.

SHERWIN, J.

The deceased was about 18 years old at the time of his death, and was then, and for several days previous thereto had been, in the employ of the Cudahy Packing Company in Sioux City. The plant of this company consists of a group of buildings separated by an alley several hundred feet in length running north and south. The killing and packing building, in which the deceased worked, was on the west side of the alley, and the timekeeper's office and the general office were at some distance apart on the east side of the alley. Extending the entire length of the alley, and near the center thereof, was the main switch track used by the defendant for the purpose of reaching the Cudahy plant and the Armour plant, which was situated some distance south of the Cudahy plant. Abutting the alley in front of the east row of buildings was a loading platform about three feet high running from the room occupied by the timekeeper south several hundred feet to the general office. There was also a platform of nearly the same length in front of the west row of buildings. Near the north ends of these platforms there was a sufficient plank crossing connecting them. South of this crossing, and on either side of the main switch track, there was a track immediately in front of the platform. There were also two tracks north of the crossing, similarly situated. These side tracks did not, however, extend over the crossing in question, which was at grade where it crossed the track. The killing and packing building or room was south of this crossing and north of the general office. The deceased, with two fellow workmen, left the building together a little before 6 o'clock in the afternoon, for the purpose of reporting their time at the general office, coming out of the building through the hide cellar door onto the loading platform. Immediately in front of this point two cars, coupled together, were standing on the track, the north one of the two being an offal car and the south one an ordinary box car. Upon reaching the platform they stopped and looked to the north for a moment, and then walked south to a point a couple of feet south of the south end of the box car, where they left the platform to cross the tracks. The other two were ahead of the deceased, and crossed safely, but just as he stepped onto the main track he was struck and killed by one of the defendant's trains running south at the rate of 18 or 20 miles an hour. The engine was pushing one box car and drawing several others, and no alarm was sounded as the train went through the alley. One of the defendant's employés was standing on the top of the forward car, but he was not looking ahead of the train. A motion to direct a verdict for the defendant was made and sustained at the close of the plaintiff's evidence, and we have two questions for determination: First, was the deceased a trespasser? and, second, if not, was he guilty of contributory negligence? The court sustained the motion on the latter ground.

A thousand or more men were employed in and about the Cudahy plant, and had been so employed a long time prior to the accident in question. Approximately one-half of the employés worked on the west side of these tracks, and each day when they quit work it was their custom, required by the rules of the Cudahy Company, to report their time either at the timekeeper's office or at the general office, depending upon the time they reported. The evidence showed that these employés, as well as those working on the east side of the tracks, were, and had been for years, in the habit of crossing the tracks at all points along the alley between the buildings; that such practice was more common than the use of the crossing at the north ends of the platforms; that this practice was fully known to the defendant's employés during all of the time, and that no objection had ever been made thereto by the defendant. The tracks were laid on the surface of the ground, and between them and between the rails of each cinders had been put in and leveled off, so that the entire surface of the alley between the buildings was level and smooth.

In Clampit v. C., St. P. & K. Ry. Co., 84 Iowa, 71, 50 N. W. 673, the plaintiff, in going back and forth between his home and his work, crossed the defendant's tracks on a footpath much used by the public, and which was just at the foot of a high bank where a stairway had been built by persons using such crossing. It was contended in that case that the plaintiff was a trespasser, and not entitled to recover, but we held otherwise, and said: “There were no fences along the road, and nothing to prevent all persons desiring to do so crossing the road freely. The defendant and the railroad company owning the track, or either, had in no manner forbidden the crossing of the track by footmen, and had thrown no obstacles in their way. The fact that the place at the stairs was used as a crossing by pedestrians, who also crossed at other places near by, was known by the employés of the defendant, and by the engineer who operated the engine which struck the plaintiff. The stairway and the ties across the ditch, as well as the path made by footmen, prominently advertised the place as a crossing used by pedestrians. No engineer or fireman passing along the tracks at that place with his eyes open, in the exercise of reasonable watchfulness and care, could have failed to see these indications of the footpath, and to understand therefrom that it was used by pedestrians, if he possessed ordinary intelligence. The defendant and the railroad company owning the track, having through their employés and officers knowledge of the use of the footpath crossing, and having made no objections thereto, nor erected fences, walls, or other obstructions to such use, will be presumed to assent to it; thus giving all who use the crossing license therefor. The plaintiff, therefore, was not a trespasser upon the railroad track, but is entitled to all the rights and protection of one rightfully upon it with the license of the defendant.” This case was followed in Thomas v. C., M. & St. P. Ry. Co., 103 Iowa, 649, 72 N. W. 783, 39 L. R. A. 399, where a child was injured on the defendant's track, where the public was accustomed to travel with the knowledge of the defendant. After quoting from the Clampit...