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

Citation121 N.W. 676,145 Iowa 250
PartiesTHEODORE DIECKMANN, as Administrator of the Estate of FREDERICK J. DIECKMANN, Deceased, Appellant, v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellee
Decision Date05 June 1909
CourtUnited States State Supreme Court of Iowa

REHEARING DENIED TUESDAY, DECEMBER 21, 1909.

Appeal from Linn District Court.--HON. B. H. MILLER, Judge.

ACTION to recover damages for the death of Frederick J. Dieckmann. There was a directed verdict and judgment for defendant, and plaintiff appeals.

Reversed.

Charles A. Clark & Son and Wm. G. Clark, for appellant.

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

WEAVER J. SHERWIN, J. (dissenting).

OPINION

WEAVER, J.

The following facts are undisputed: The defendant operates a double track railway, passing east and west through the town of De Witt, Iowa. The ticket office, waiting room, and main platform of the station are north of the tracks. Trains move eastward on the north track and westward on the south track, and westbound passengers are required to pass from the main platform over a planked way across both tracks to a platform on the south side in order to board their trains. At about eleven o'clock of the night of March 31, 1902, Frederick J. Dieckmann, a traveling salesman, went to the station to take the westbound train, which was due there about twenty minutes later. He purchased a ticket from De Witt to Cedar Rapids, and when the approach of the train was announced, or very soon thereafter, he picked up the grips which he was carrying, and started in the direction of the south platform. At or about the same time the station agent, taking a lantern, went in the same direction, and both he and Dieckmann were struck by the train, the former being instantly killed, and the latter mortally injured, dying the next day.

Concerning the details with which this general outline of conceded facts is to be filled, there is some dispute and uncertainty. There is, however, evidence which tends to show that it was the custom or practice of the agent, on the approach of westbound trains, to call out, "Train west All passengers cross over to the south side." At night he carried a lantern, and, after announcing the train, crossed over to the south platform. In so doing he was in the habit of showing the planked way or crossing to the passengers about to depart, and assisting them over, if assistance appeared to be needed. On the night in question he was heard to make the usual announcement; then, taking his lantern and some mail in his hand, started from the office in the direction of the south platform, followed by the deceased. The engineer in charge of the locomotive testifies that the train was moving at probably forty miles per hour, and was one minute ahead of schedule time as it entered the De Witt yards and sixteen miles per hour at the east end of the platform, which speed he thinks had been reduced to eight miles when the collision occurred. The headlight would not distinctly reveal to the engineer the form of a man at the distance of one hundred feet, but in his judgment it would do so at fifty feet. For an instant, as he approached, his eye was diverted to the air gauge of the engine, and, as he looked forward again when very near the crossing, he distinctly saw two men apparently running across the track to the south, one being slightly ahead of the other, the one in the rear carrying a lantern. Almost at the same instant, and before any effective measure could be taken to stop the train, both men were struck, with the results already mentioned. A witness for defendant, who claims to have seen the collision, states that the agent and himself crossed the tracks in safety to the south platform, and on turning saw Dieckmann coming carrying three grips. On reaching the north track witness says Dieckmann fell, and, arising and hurrying forward he fell again on the south track, when the agent went back and laid hold of him, and was trying to drag him from the track when the engine came upon them. This witness and the engineer are the only persons testifying as eyewitnesses of the accident, and it is evident that one of them is mistaken as to some of its material circumstances. In corroboration of the engineer's statement it may also be said that the body of the agent was found under the north wheel of the engine or on the north rail; while the body of deceased lay on the platform on the south side of the south rail. Which story is the more worthy of credit is not a question for the court to consider; nor are we prepared to say that if the latter version is correct, it is decisive of the case.

Plaintiff's claim for damages is based upon the theory that, when Dieckmann went to the station and purchased a ticket for passage on a train nearly due, the relation of carrier and passenger then became effective, and that the railway company thereupon became bound to exercise the highest degree of care for his safety, and to provide him a safe way to the train and opportunity to reach the platform without injury, as well as to furnish proper escort and direction to the passenger if reasonably necessary to insure such safety. In these respects it is alleged the company was negligent. The defendant denies negligence on its part, and insists that the intestate was clearly guilty of contributory negligence. Upon a former submission the ruling of the trial court directing a verdict for defendant was sustained, but, a petition for rehearing having been granted, the case has been reargued by counsel on both sides with great thoroughness. The material questions may be considered in the following order:

I. We will first inquire as to the relation existing between the appellant and the deceased at the time of the accident and the measure of the duty, if any, which the former owed to the latter. Mr. Hutchinson states the general rule to be that a person who goes to the station of a railway company within reasonable time prior to the hour set for the departure of a train, with the bona fide intention of taking passage thereon, and there, either by purchasing a ticket, or in some other manner indicates such intention to the carrier, he is considered to be a passenger, and entitled to all rights and privileges which the law attaches to that relation. 2 Hutchinson on Carriers (3d Ed.) 1006. Such is also the rule of the decisions and text-books generally. 1 Fetter on Carriers of Passengers, section 55; Chicago, etc., R. R. Co. v. Walker, 217 Ill. 605 (75 N.E. 520); Warren v. R. R. Co., 90 Mass. 227, 8 Allen 227 (85 Am. Dec. 700); Knight v. R. R. Co., 56 Me. 234 (96 Am. Dec. 449); Gaynor v. R. R. Co., 100 Mass. 208 (97 Am. Dec. 96); Railway Co. v. Ryan, 165 Ill. 88 (46 N.E. 208); Warner v. R. R. Co., 168 U.S. 339 (18 S.Ct. 68, 42 L.Ed. 491); Norfolk & Western Ry. Co. v. Galliher, 89 Va. 639 (16 S.E. 935); Baltimore & O. Ry. Co. v. State, 63 Md. 135; Baltimore & O Ry. Co. v. State 81 Md. 371 (32 A. 201); Railway Co. v. Perry, 58 Ga. 461; Railway Co. v. Franklin (Tex. Civ. App.) 44 S.W. 701; Rogers v. Steamboat Co., 86 Me. 261 (29 A. 1069, 25 L. R. A. 491); Atchison, etc., R. Co. v. Holloway, 71 Kan. 1 (80 P. 31, 114 Am. St. Rep. 462); Jordan v. R. R. Co., 165 Mass. 346 (43 N.E. 111, 32 L. R. A. 101, 52 Am. St. Rep. 522). This court is also committed to the same doctrine. Allender v. R. R. Co., 37 Iowa 264 at 270; Ramm v. R. R. Co., 94 Iowa 296, 62 N.W. 751. We must therefore consider the deceased to have been a passenger at the time he attempted to cross the tracks, and the degree of care which the company was bound to exercise for his safety must be measured accordingly. It is also to be observed that, when it was shown that deceased sustained the relation of passenger, and that he was killed by a train under the management and control of the defendant as carrier, the burden was cast upon it to negative the inference or presumption of negligence on its part. 5 Hutchinson on Carriers (3d Ed.), section 1413.

II. It is claimed by appellant that the railway company negligently failed to control or reduce the speed of the train in approaching the station. Upon the former hearing to this appeal the court in its opinion held that the case would have been one for the jury on the question of excessive speed but for the fact that the contributory negligence of the deceased exonerated the company from liability. Counsel for appellee insist that no rate of speed in the movement of a railway train can be negligence per se, and that the case before us presents no circumstances from which a finding of want of reasonable care by the company in this respect can be sustained. We have quite frequently said that no conceivable rate of speed by a railway train in the open country will be held negligent as a matter of law, but we have nowhere held that the rate of speed upon or across city streets or public crossings, or on station grounds where passengers may rightfully go, may not under some circumstances be found negligent as a matter of fact. Kinyon v. R. R. Co., 118 Iowa 349, 92 N.W. 40; Artz v. R. R. Co., 44 Iowa 284 at 285.

In the case before us the company required its passengers desiring to board the westbound train to leave its waiting rooms and cross both tracks to the south platform. The approach of these tracks from the east was from a straight line of several miles. At night, in the very nature of things, the view of a locomotive headlight coming straight on through the darkness would give the ordinary observer a very inadequate idea of its distance, or of the speed of its approach. Of all these things the company must be held to have had knowledge and we think it a fair question for the jury to say whether, in view of the known danger to which the company's method of business...

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  • Monaghan v. Equitable Life Ins. Co. of Iowa
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    ... ... Fitch v. Mason City & C. L. Tr. Co., 124 Iowa 665, ... 668, 100 N.W. 618, and Dieckmann v. Chicago & N.W. R ... Co., 145 Iowa 250, 121 N.W. 676, there was evidence from ... which an ... ...
  • Dieckmann v. Chi. & N. W. Ry. Co.
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    • Iowa Supreme Court
    • June 5, 1909
  • Corbett v. Hines
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    • Iowa Supreme Court
    • December 15, 1922
    ...Co., 102 Iowa, 599-600, 71 N. W. 569;Burnett v. Railway Co., 172 Iowa, 704, 154 N. W. 919;Dieckmann v. Railway Co., 145 Iowa, 271, 121 N. W. 676, 31 L. R. A. (N. S.) 338, 139 Am. St. Rep. 420;Gray v. Railway Co., 160 Iowa, 1, 139 N. W. 934;Platter v. Railway Co., 162 Iowa, 143, 143 N. W. 99......
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