Clark v. Iowa Cent. Ry. Co.

• Decision Date: 18 December 1913
• Citation: 144 N.W. 332,162 Iowa 630
• Parties: CLARK v. IOWA CENT. RY. CO.
• Court: Iowa Supreme Court

162 Iowa 630

144 N.W. 332

CLARK

v.IOWA CENT. RY. CO.

Supreme Court of Iowa.

Dec. 18, 1913.

Appeal from District Court, Marshall County; William N. Treichler, Judge.

Plaintiff, as executrix of the estate of Minnie D. Ashbrook, brought this action to recover damages in the sum of $1,999 for the alleged negligence of defendant causing death of deceased. Trial to jury, and verdict for plaintiff in the sum of $400. Plaintiff moved for a new trial upon two grounds only: First, that the verdict was contrary to the evidence; second, that the amount assessed by the jury was inadequate. The motion was sustained. Defendant appeals. Affirmed.Boardman & Lawrence, of Marshalltown, and W. H. Bremner, of Minneapolis, Minn. (George W. Seevers, of Oskaloosa, of counsel), for appellant.

J. J. Wilson, of Marshalltown, for appellee.

PRESTON, J.

No evidence was introduced on behalf of defendant. There is no complaint by either party as to the instructions or any of the rulings on the admission or exclusion of evidence. It appears that deceased, while crossing the tracks of defendant railway, in the city of Marshalltown, was struck and killed by one of defendant's cars, which was being switched across the street. The grounds of negligence alleged are, substantially: First, switching the car across the street without being in charge of a brakeman; second, not closing the gates before deceased went on the tracks; third, not giving warning of the approach of the car. At the close of the testimony, defendant moved for a directed verdict because the plaintiff had failed to prove that the negligence alleged was the proximate cause of the injury; that deceased was guilty of contributory negligence; and that such contributory negligence was the proximate cause of her injury. The motion was overruled. The car which struck deceased was being kicked across the street crossing by a switch engine. It was not attached to the engine, and there was no one in charge of the car.

It is not seriously contended by appellant that the evidence was not sufficient to take the case to the jury on the question of the negligence of the company. The errors assigned for reversal are: (1) That the verdict was warranted by and sustained by the evidence, and the court erred in setting it aside. (2) That the evidence shows beyond dispute and contradiction that the deceased was guilty of contributory negligence. (3) That the evidence shows beyond dispute that the contributory negligence of the deceased was the proximate cause of the injury.

The facts, briefly stated, are that deceased and three other ladies were going south on the east side of the street. The north gates were let down behind the deceased and her companions. The flagman who operated the gates from the tower saw deceased and says he let the gates down behind them and started to lower the south gates. Deceased had crossed over the north track, and the switch track south of it, when the wind blew her hat off. The hat was blown back north, and deceased started after it. A witness says: “As soon as she passed the building, she would have a plain view of the car. She went directly back after her hat, and did not stop. She went just like a person would, in a good quick move to pick up something that was blowing on the ground--a sort of a half walk and a half run--and proceeded in this way directly onto the track, without stopping.” At about this time the car struck her. Another witness says that when the car hit her she was approximately on the sidewalk. She did not get to where her hat was. The flagman started to lower the south gate about the time deceased started for her hat. The south gate was not down far enough to bar her passage as she went back for her hat. If she had been a little later, the gate would have been down far enough to bar her passage. Another witness says: “At the time the car struck her, she looked as if she was turning around to come back. She was on the east side of the sidewalk when the car struck her. The car pushed her across on the west side of the street, where there is a large, square tie, which kind of stopped her, and the car ran over her and went on.” Another witness says: “She was going after her hat. Her hat was between the two rails, further north of her. She had evidently started for her hat and became confused. If she had gone on, she would not have been hit by the car. You could tell by her action as the car struck her that she was in the act of turning to start back. She was looking just about southwest, turning kind of aside of the car, looking and turning, as if she was trying to get away from the car. There were no other cars there on the tracks that prevented her looking north. There wouldn't be anything to obstruct her view as she passed out from the line of the building--to obstruct her view northeast when she once got by this corner of the building. Looking northeast, she could see right across towards any car that was coming along this track. She could see the car that was coming down the track after she got past the corner. There was nothing to obstruct her view of the car that was going west if she had been looking that way.”

The flagman says: “The switch engine had backed down across the crossing and was preparing to kick the car back west. I observed she had plenty of time to go in front of the engine, and she got across in front of the engine. The car had not started west as she went across in front of the car. After she passed the south gate, I started to lower that I am not positive whether I rang the bell when I pumped the south gate down. I usually ring the bell. I did not see her come running for her hat. I started to lower the south gate as soon as I saw that she was safely across so the gate wouldn't hit her. Then I started to lower it right away. The reason I didn't see her run back was because I had to turn my back in that direction to get to the pump. The gates over the street and the gates over the sidewalk come down at the same time. There is a bar comes down in front of the sidewalk and blocks the way. I did not have any idea, from the way Miss Ashbrook was going at the time that I last saw her, that she was going to turn around and run back towards the track. From the time that she passed the south gate and I commenced to pump the gate down, she had not made any movement of any kind to indicate that she intended to turn around and go back...