Dowell v. Burlington, C. R. & N. Ry. Co.

• Decision Date: 15 December 1883
• Citation: 62 Iowa 629,17 N.W. 901
• Court: Iowa Supreme Court
• Parties: DOWELL, ADM'R, ETC., v. BURLINGTON, C. R. & N. RY. CO.

62 Iowa 629

17 N.W. 901

DOWELL, ADM'R, ETC.,

v.BURLINGTON, C. R. & N. RY. CO.

Supreme Court of Iowa.

Filed December 15, 1883.

Appeal from Linn circuit court.

Action to recover damages to the estate of which plaintiff is the administrator, resulting from the death of the intestate, caused by personal injuries received by him through the alleged negligence of defendant while he was in its employment as a brakeman. There was a judgment upon a verdict for plaintiff. Defendant appeals.J. & S. K. Tracy, for appellant.

Traer & Voris, for appellee.

BECK, J.

1. The plaintiff's intestate, while in the discharge of his duty as a brakeman upon a train running upon defendant's road, fell from the engine, where he, with the conductor, was at the time, and was run over and killed by the train. He was directed by the conductor to look back to discover whether the train was separated, and, in obedience to this command, went to the side of the engine. He was last seen in life then. No one observed his fall, and the cause of it is not shown by the evidence. At the time the train was passing through a snow-bank about 10 feet high. The track had been cleaned off, and the snow deposited by the snow-plow on the bank, four or five days before the accident. The snow-bank, at the bottom, was far enough away to permit the cars to pass, and it receded at an angle of about 45 degrees, according to the testimony of some witnesses. Others testified that the bank, at some points, approached to within 15 inches of the cars. The intestate assisted to clear off the track, and had knowledge of the character of the snow-bank and the distance it was from the cars.

2. Plaintiff insists that the intestate, in looking back as directed by the conductor, was struck by the snow-bank, which caused his fall, and that defendant was negligent in permitting the bank to remain too near the track. But there is no positive evidence supporting the fact upon which this theory is based, and the jury so find, in response to a question propounded to them. The appearance of the snow at the place where the intestate fell did not indicate that he was struck by the bank. It did show that he fell against the bank.

3. The court directed the jury in effect that if, from the evidence, they could not find whether the accident was the result of defendant's negligence or want of ordinary care by the intestate, and “the matter is thus left to conjecture,” their verdict should be for the defendant; and that if they found the snow-bank was so near the cars that the intestate could not have obeyed the order to look back without being struck, while exercising ordinary care, and in ignorance of the...