Farley v. The C., R. I. & P. R. Co

• Decision Date: 14 June 1881
• Citation: 9 N.W. 230,56 Iowa 337
• Parties: FARLEY v. THE C., R. I. & P. R. CO
• Court: Iowa Supreme Court

9 N.W. 230

56 Iowa 337

FARLEY v. THE C., R. I. & P. R. CO

Supreme Court of Iowa, Des Moines

June 14, 1881

Appeal from Polk District Court.

THE plaintiff is the administrator of the estate of John Farley deceased, his son, who, being in the employment of defendant as a section hand, was killed by cars running over him while walking upon defendant's railroad track. This action is brought to recover for the injuries which resulted in his death. There was a verdict and judgment for plaintiff. Defendant appeals.

AFFIRMED.

Wright Gatch & Wright, for appellant.

Nourse Kauffman & Jackson and D. Donovan, for appellee.

BECK J. SEEVERS, J., dissenting.

OPINION

BECK, J.

I.

It is insisted by defendant's counsel, 1. That the testimony fails to show negligence on the part of defendant's employes operating the cars which caused the death of the intestate; 2. That the evidence shows want of care on the part of the deceased, which contributed to the injury. A motion for a new trial based upon these grounds was overruled.

The evidence before us establishes the following facts connected with the injury; The intestate was employed, as a section hand, with others, in repairing the track of defendant's road, at a point about one half mile east from the section house. About noon a freight train was due from the west. Between the point where the men were at work and the section house was a "cut", and a curve therein, which prevented the men seeing the approaching train from the west. The men were at work at the east end of the "cut." The foreman sent the intestate west to watch for the approach of the train. He went on the south side of the railroad upon the bank, which was five or six feet high, to await the coming train. This point was about 400 feet from the place at which he had left the other section hands. Upon discovering the train, or at a proper time thereafter, he signaled the men, who thereupon removed the hand-car to the north side of the track and took a position on the same side. Soon after the signal, and before the train had come up, he came down from the bank to the side of the track and stood there until the train passed him. He then stepped upon the track, immediately after the last car had passed, and walked towards the other men and the hand-car. The train had separated nearly half a mile west of this point; two or three cars, probably two freight cars and the caboose, were from 90 to 120 feet behind the other cars of the train, all running at the rate of fifteen or twenty miles per hour. The deceased went upon the track between these two sections of the train, and had walked, some of the witnesses say ran, but a short distance when the separated cars struck him and ran over him, causing instant death. There was no brakeman or other persons upon the top of either of the separated cars, the conductor and brakeman being in the cupola of the caboose, and no effort was made to check the speed of the separated cars until about the time they had struck deceased. No one upon the train saw him while he was walking upon the track. The grade was "down" in the direction the train was running. Upon the evidence, we think the jury were authorized to find that the employes of defendant in charge of the train were negligent. While the conductor testifies that he did not discover the separation of the train until they were within 150 yards of the point where the intestate was killed, the brakeman with him in the cupola of the caboose states that he discovered the separation when the train was passing the section house, which is shown to be about one-half mile from the place where intestate was killed.

II. The jury, we think, were authorized to find that the conductor was negligent in not discovering the separation sooner, and the brakeman was negligent in not informing him of the separation as soon as it was discovered; that they were negligent in not being upon the tops of the cars, where they could have controlled their motion by use of the brakes, and signaled danger, if they discovered any one exposed thereto, and that had proper care been exercised in this respect the intestate would have been enabled to escape from the track.

III. Was the deceased wanting in care? It must be conceded that he went upon the track without directing his eyes to the detached cars. No one, ordinarily, can, in the exercise of care, go upon a railroad track without looking for approaching cars. But it would be unreasonable to hold that the law requires a person to look for cars moving after a train, and within one hundred feet of it, especially upon parts of the road where, as in this case, there are no switches. When one has waited until the train goes by he does not cast his eyes backward to see if another train is following within one hundred feet. The deceased, it may readily be understood, from his position on the bank did not observe the separation of the train. In this he was not negligent, for it was not a part of his duty to notice the length or other characteristics of the approaching train.

It may not have been readily observed from the position in which he stood. He descended from the bank and then waited until the last car, as he supposed, had passed. The noise of the three cars following was drowned in the greater noise of the train before him. In our opinion his act of walking upon the track was not in the absence of care. These views, we think, are supported by the following cases: Brown v. N. Y. C. R. R. Co., 32 N.Y. 597; Butler v. M. & St. P. R. Co., 28 Wis. 487; McGovern v. N. Y. C. & H. R. R. R. Co., 67 N.Y. 417; French v. Talleston Branch R. R. Co., 116 Mass. 537.

The intestate, it will be remembered, was about 400 feet from his comrades when he gave the signal. His duty required him to join them. To do so he must cross the railroad track, for they were north and he south of it. He was, therefore, in the discharge of his duty in going upon the track. We think it cannot be claimed that it was negligence for him to attempt to return on the track. He did not go upon it as a trespasser and without authority. The law will not charge him with negligence because he did not attempt to cross the track by a course at right angles with it. While it cannot be denied that the deceased was authorized in the discharge of his duty to cross the track, it is urged that, in attempting to do so by walking lengthwise along the track, or diagonally across it, he was negligent. The thought of the objection is that his duty required him to cross the track by a course at right angles with it. It may be admitted for the purpose of argument that had he crossed the track in this manner he would have escaped death.

It will be remembered that deceased was not negligent in not looking for the approaching cars; that he had a right to presume the train was run in the usual manner, and with the usual care upon the part of those operating it.

He was justified in believing that he incurred no danger by going upon the track, for the reason that he was authorized to presume there were no more cars and no other train following in dangerous proximity to the train that had just passed. Being authorized to act upon this presumption, he was not negligent unless the walking upon the track for more than 400 feet immediately following a train would expose him to danger from another train which might be following, if the trains were run with ordinary care and in usual proximity to one another. If he walked with usual speed it would require about one minute, certainly not more than a minute and a half, for him to pass over the 400 feet between the point at which he went upon the track and the point where his comrades were awaiting him. He could have relied upon the presumption that another train would not be following the passing train within ninety seconds, for railroad trains are not run in such reckless manner. Now relying upon this presumption, and being charged with the duty of returning to his comrades, it was not negligent for him to walk lengthwise along the track or cross it diagonally. It is more than can be expected of a man, in the exercise of the highest care, that, when no...