Borough v. Minneapolis & St. L. R. Co.
| Decision Date | 04 March 1924 |
| Docket Number | No. 35627.,35627. |
| Court | Iowa Supreme Court |
| Parties | BOROUGH v. MINNEAPOLIS & ST. L. R. CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Keokuk County; Chas. A. Dewey, Judge.
Action for damages. Verdict and judgment for plaintiff. Defendant appeals. Affirmed on condition.Devitt & Eichhorn, of Oskaloosa, and Stockman & Baker, of Sigourney, for appellant.
C. C. Orvis, of Oskaloosa, and Hamilton & Beatty and Talley & Snakenberg, all of Sigourney, for appellee.
This case is now before us on the third appeal. The first trial resulted in a directed verdict for the defendant, and reversal upon plaintiff's appeal. Borough v. Railway Co., 184 Iowa, 210, 167 N. W. 177. The second trial resulted in a verdict for plaintiff, and a reversal upon defendant's appeal. Borough v. Railway Co., 191 Iowa, 1216, 184 N. W. 320. The third trial again resulted in a verdict in favor of plaintiff, and the defendant appeals. A full statement of the facts was made in each of our former opinions, and also in Snakenberg, Adm'r, v. Railway Co., 194 Iowa, 215, 188 N. W. 935, which arose out of the same accident.
Briefly, the accident occurred at a railway crossing near Martinsburg, Iowa, about 10:30 p. m. on the evening of August 14, 1914. Plaintiff and two companions, Northup and Smithart, who were riding in a single buggy, approached the crossing from the south, and, while attempting to cross the same, the horse and buggy were struck by a west-bound passenger train on the main track. There is a switch or passing track immediately south of the main track. The distance between the nearest rails of the two tracks is about 11 feet. As appellee and his companions approached the crossing, they observed a freight train on the switch or passing track, which had been cut so as to admit passage over it. The horse and Smithart, the driver, were killed in the collision, the buggy demolished, and appellant claims to have suffered serious permanent injuries. Northup, observing that a collision was imminent, jumped from the buggy and was but slightly injured. A verdict and judgment in Snakenberg, Adm'r, v. Railway Co., for the defendant, was affirmed upon appeal.
Except appellant's contention that the verdict is excessive, all of the errors assigned are predicated upon the instructions given, and the refusal of the court to give a large number requested by appellant. Many of the matters argued were involved upon the former appeals, and what is there said is determinative of them.
[1] Appellant requested the court, in effect, in instruct the jury that, if the injuries complained of were the result of the joint negligence of appellant and appellee, then no recovery could be had. The court, in numerous of its instructions, fully defined contributory negligence as applied to the facts of this case. The substance of the requested instruction was, in effect, repeatedly stated by the court.
Requested instructions Nos. 3, 4, 14, 15, 16, and 17 all dealt with the subject of contributory negligence. In each of them appellant sought to call particular attention of the jury to facts and circumstances appearing in the evidence, and, if given, would have tended to unduly emphasize such facts and circumstances to the jury. The material substance of the requested instructions was fully incorporated in the court's charge to the jury. Some of the instructions given were more favorable to appellant than was justified by the decisions of this court. The court peremptorily instructed the jury that the three occupants of the buggy were engaged in a joint enterprise, and that “any act of negligence, if any, on the part of any one of said three persons, which contributed in any manner to the injury complained of, would be, in law, the negligence of all three of them.” This thought is embodied in some of the instructions referred to above. The language of the court was somewhat less emphatic than the language of the requested instructions, but the subject of contributory negligence was fully covered by the instructions given.
[2] Appellee testified that, just before the engine struck the buggy, the freight train was suddenly, violently, and without warning closed up. It is not wholly clear from the evidence just how the movement of the freight train contributed to the accident, but it was a part of the circumstances, and the time that intervened after appellee and his companions went upon the crossing and the closing up of the freight train and the collision could not have exceeded a very few seconds.
In another instruction, appellant requested the court to instruct the jury that, although it found that the freight train was closed up without warning, nevertheless, if...
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