Dieckmann v. Chi. & N. W. Ry. Co.

• Decision Date: 10 January 1906
• Citation: 105 N.W. 526
• Parties: DIECKMANN v. CHICAGO & N. W. RY. CO.
• Court: Iowa Supreme Court

105 N.W. 526

DIECKMANN

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

Jan. 10, 1906.

Appeal from District Court, Linn County; Benj. H. Miller, Judge.

Suit to recover damages caused by the death of Frederick J. Dieckmann. There was a directed verdict for the defendant. The plaintiff appeals. Affirmed.Chas. A. Clark & Son and W. G. Clark, for appellant.

Grimm, Trewin & Moffit, Clark & McLaughlin, and James C. Davis, for appellee.

SHERWIN, J.

Frederick J. Dieckmann was killed by one of the defendant's westbound trains at De Witt, Iowa, at about 11 o'clock at night. The track of the defendant at that point is double; the north track being used by the east-bound trains, and the south track by those going west. The depot is north of both tracks, and passengers going west are required to cross them to a platform south thereof, from which the west-bound train is boarded. There is a planked way for passengers between the depot platform and the one south of the tracks. On the night of his death, deceased went to the station for the purpose of taking the west-bound train that was due there at about 11 o'clock. He remained in the depot until the approach of the train was announced, when he left it and started to cross over to the south platform. He was killed by the train that he intended to take.

The appellant contends that the defendant was bound to furnish a safe way to the train and to give passengers time and opportunity to reach the same in safety; and, further, that it is its duty to escort and direct them, if it be reasonably necessary to do so. The first two legal propositions are not questioned, and they undoubtedly state the law; but the evidence shows that ample time to cross to the south platform before the arrival of the train was given the deceased, and that the way was safe for a person exercising ordinary care, unless we hold, as a matter of law, that when double tracks are used the railway company operating them is bound to provide either an overhead crossing or an underground way. This is a matter for the Legislature, and not for the courts. We can imagine cases where the duty of escorting a passenger to the train might arise, but this case cannot in our judgment be brought within such a rule. The deceased was a vigorous young man in full possession of his senses of seeing and hearing, and possessed also of normal understanding. He was familiar with the station in question and with the passage of trains and the manner of boarding them. There were no special circumstances demanding an escort over the tracks to the south platform, and the defendant did not owe him the duty of furnishing one. Raben v. Central Iowa Railway Company, 74 Iowa, 738, 34 N. W. 621.

It is claimed that the train was approaching the station at a dangerous rate of speed, and that the question of the defendant's negligence on account thereof should have been submitted to the jury. There was no ordinance limiting the speed of trains on the track in question, and the engineer's testimony was to the effect that the train was moving at the rate of about eight miles an hour when it struck the deceased. While any rate of speed is not per se negligence, in the absence of a controlling statute or ordinance, it is possible that there was enough in the whole record to require the submission of this question to the jury, if a finding thereon adverse to the defendant could have warranted a verdict for the plaintiff. Cohoon v. Railway Co., 90 Iowa, 169, 57 N. W. 727;Johnson v. Railway Co., 75 Iowa, 158, 39...