Christiansen v. Illinois Cent. R. Co.

• Decision Date: 24 November 1908
• Citation: 118 N.W. 387,140 Iowa 345
• Parties: CHARLES CHRISTIANSEN v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

118 N.W. 387

140 Iowa 345

CHARLES CHRISTIANSEN v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant

Supreme Court of Iowa, Des Moines

November 24, 1908

Appeal from Mitchell District Court.--HON. C. P. SMITH, Judge.

ACTION to recover damages for personal injuries alleged to have been received by reason of the negligence of the employes in the operation of a train, and without contributory negligence on the part of the plaintiff. There was a verdict for the plaintiff, and, from a judgment thereon, the defendant appeals.

Affirmed.

W. S Kenyon, Thos. D. Healy, and J. M. Dickinson, for appellant.

Charles E. Salisbury and Wm. H. Salisbury, for appellee.

OPINION

MCCLAIN, J.

The facts which the evidence tended to establish, so far as necessary for the determination of the questions presented on this appeal were as follows: Plaintiff was a passenger in the caboose of a stock train which came into the town of Osage from the north, and was thus riding under a contract which required him to feed water and take care of his stock being transported in cars in the said train. When the train stopped at Osage, the engine was detached from the south end of the train and was run along a passing track to the west of the main track on which the train stood to the north end of the train, where it was coupled to the caboose in which plaintiff remained, and this caboose and some of the other cars were pulled to the north for the purpose of incorporating into the train several other cars of stock. After the switching was completed, and the train was made up, and after the engine had been used in handling some other cars in the stockyards to the north, the plaintiff dismounted from the caboose at its south end, and went along southward between the train and the passing track, and near the east rail of the passing track, for the purpose of looking at his stock in the cars. He was engaged in looking for the numbers on the freight cars in the endeavor to locate the cars containing his stock, and had passed southward less than two car lengths when he was struck by the engine coming south along the passing track. Plaintiff testifies that, when he dismounted from the caboose, he looked northward and saw the engine apparently standing still on the main track, and did not look again for the approach of the engine. The allegations of negligence on which the case was submitted to the jury were that defendant's employes in charge of the engine were running it at a high rate of speed without continuously ringing the bell, and without keeping a proper lookout to discover persons in danger of being struck by the engine, and that they were also negligent in failing to sound the whistle after discovering plaintiff in a position of danger. No complaint is made for appellant that the jury was erroneously instructed as to these allegations of negligence, save in one respect to be hereafter noticed, nor that there is not sufficient evidence to support the finding by the jury as to the grounds of negligence on which the case was submitted; but it is earnestly contended that there was such proof of contributory negligence as to defeat recovery by plaintiff as a matter of law.

Plaintiff had a right to pass along the track while the train was standing in the station yard for the purpose of inspecting his stock. While doing so he was not a trespasser nor a mere licensee; but he was a person rightfully in the defendant's yards and near its tracks in a place where he might be in danger by reason of the movement of trains and cars along such tracks. In view of the danger incident to being in the yard and near the tracks, it was his duty to exercise such reasonable care and precaution as an ordinarily prudent person would exercise under such circumstances for his own safety. This duty involved the necessity of looking out for engines and cars moving along the tracks. He did, in fact, look to the northward and see the engine which afterward by moving along the passing track caused him the injury of which he complains.

The real question is this: Was he as a matter of law negligent in not looking again within the short time occupied by him in walking southward for less than two car lengths when he might by thus looking have seen the approaching engine and avoided the injury? We think that when it is conceded that the jury may have found that the engine was run at a speed of twenty-five or thirty miles an hour along the track at the place where the plaintiff or others similarly situated might rightfully be, and without proper signal by the continuous ringing of the...