Clampit v. Chicago, St. Paul & Kansas City Railway Co.

• Decision Date: 16 December 1891
• Citation: 50 N.W. 673,84 Iowa 71
• Parties: RICHARD M. CLAMPIT, Appellee, v. CHICAGO, ST. PAUL & KANSAS CITY RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

50 N.W. 673

84 Iowa 71

RICHARD M. CLAMPIT, Appellee, v. CHICAGO, ST. PAUL & KANSAS CITY RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

December 16, 1891

Appeal from Polk District Court.--HON. W. F. CONRAD, Judge.

ACTION to recover for personal injuries sustained by the plaintiff by reason of a locomotive, operated by the defendant striking him when he was crossing on foot the railroad whereon the engine was running. There was a verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.

A. J Baker, for appellant.

Smith & Morris, for appellee.

OPINION

BECK, C. J.

I. The plaintiff, a carpenter, in going from his house, in Des Moines, to the place where he was employed in the same city was accustomed to cross the Des Moines Union railway, which was used by the defendant in transporting its cars to its station-house in Des Moines. The crossing of the railway tracks was made by the plaintiff on foot, at a place much used by pedestrians, just at the foot of a bluff or bank which was approached by a stairway constructed by persons using the footway. While crossing the railway, when going to his work, according to his custom, he was struck by an engine and seriously injured.

II. Counsel for the defendant maintains that the plaintiff was not rightfully upon the railway track, and was a trespasser when he received the injury, and, therefore, cannot recover in this action. The place where the accident occurred was in the city of Des Moines, and was daily used by a number of persons employed at the pork-house and other places in that part of the city, in going to and returning from their work. It had been used for a considerable time by such persons and others, who, or some of whom, as we have just stated, constructed a stairway down by the track for their own use, and for other pedestrians using the footway. A crossing of the ditch near the track was constructed, by whom is not shown, of railroad ties, and was used until just before the accident. It is shown that pedestrians crossed the track at other places, just as they always do when the track is not fenced or other impediments are not in the way to prevent them from doing so. 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 employes 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 of 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 a 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 employes 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. He may recover for injuries resulting from the defendant's want of care, if not contributing thereto by his own negligence. In support of these views, see the following cases: Donaldson v. Mississippi & M. Ry. Co., 18 Iowa 280; Murphy v. C. R., I. & P. Ry. Co., 38 Iowa 539; Evans v. Burlington & M. R. Ry. Co., 21 Iowa 374; Townley v. Chicago, M. & St. P. Ry. Co., 53 Wis. 626; 11 N.W. 55; Davis v. Chicago & N.W. Ry. Co., 58 Wis. 646; 17 N.W. 406; Barry v. New York, C. & H. R. Ry. Co., 92 N.Y. 289; Byrne v. New York, C. & H. R. Ry. Co., 104 N.Y. 362; 10 N.E. 539; Kay v. Pennsylvania Ry. Co., 65 Pa. 269; Troy v. Cape Fear & Y. V. Ry. Co., 99 N.C. 298, 6 S.E. 77; 34 Amer. & Eng. R. R. Cas. 13, and cases cited in notes; Virginia M. Ry. Co. v. White's Adm'r, 84 Va. 498, 5 S.E. 573; 34 Amer. & Eng. R. R. Cas. 22; South & N. A. Ry. Co. v. Donovan, 84 Ala. 141, 4 So. 142; 36 Amer. & Eng. R. R. Cas. 151; Pennsylvania & R. Ry. Co. v. Troutman, 11 Wkly. Notes Cas. 453; 6 Amer. & Eng. R. R. Cas. 117; Taylor v. Delaware & H. Canal Co., 113 Pa. 162, 8 A. 43; 28 Amer. & Eng. R. R. Cas. 656; Bellefontaine & I. Ry. Co. v. Snyder, 18 Ohio St. 399; Harriman v. Pittsburgh, C. & St. L. Ry. Co., 45 Ohio St. 11, 12 N.E. 451; 32 Amer. & Eng. R. R. Cas. 37; Stewart v. Pennsylvania Ry. Co., (Ind.) 14 Amer. & Eng. R. R. Cas. 679, and cases cited in notes; Shearman & Redfield on Negligence, 493; Patterson on Railway Accident Law, 178.

III. But if the plaintiff, when he was injured, was upon the track without right or license, this did not relieve the defendant from the duty of exercising proper care to avoid the accident, and, if it occurred through the defendant's negligence, it is liable. Isabel v. Hannibal & St. J. Ry. Co., 60 Mo. 475; Harlan v. St. Louis, K. C. & N. Ry. Co., 65 Mo. 22; Hicks v. Pacific Ry. Co., 64 Mo. 430; Brown v. Hannibal & St. J. Ry. Co., 50 Mo. 461; Pennsylvania Ry. Co. v. Lewis, 79 Pa. 33; South & N. A. Ry. Co. v. Donovan, 84 Ala. 141, 4 So. 142; 36 Amer. & Eng. R. R. Cas. 151.

IV. The evidence fails to show negligence on the part of the plaintiff contributing to the injury, as claimed by the plaintiff's counsel. He stopped and looked each way for cars, and saw none. It does not appear that any whistle was sounded. The engineer and fireman testify that the bell was rung, but the plaintiff states in his testimony that, while he was hard of hearing, he could readily hear an engine bell fifty yards, and that he heard none. The engine was running backwards, and neither engineer nor fireman was looking out on the side of the track he was approaching. The evidence tends to show that the engine was running at a high rate of speed, forbidden by the city ordinance. These considerations and others support the conclusion, doubtless reached by the jury, that the defendant is chargeable with negligence, and that the plaintiff did not contribute, by his own negligence, to the injury. The defendant's motion for a verdict was rightly overruled.

V. The plaintiff was...