Dowell v. Burlington, Cedar Rapids & Northern Railway Co.
| Decision Date | 15 December 1883 |
| Parties | DOWELL, ADM'R, v. THE BURLINGTON, CEDAR RAPIDS & NORTHERN RAILWAY COMPANY |
| Court | Iowa Supreme Court |
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.
REVERSED.
J. & S K. Tracy, for appellant.
Traer & Voris, for appellee.
I.
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 there. 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 ten 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 forty five degrees, according to the testimony of some of the witnesses. Others testified that the bank at some points approached to within fifteen 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.
II. 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.
III. 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 defendant, and that, if they found that 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 fact that there was a snow bank at the place, they should find for plaintiff.
The defendant's counsel asked...
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