Farrell v. Chicago, R.I. & P.R. Co.

• Decision Date: 05 May 1904
• Parties: WILLIAM FARRELL, Administrator, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellants
• Court: Iowa Supreme Court

99 N.W. 578

123 Iowa 690

WILLIAM FARRELL, Administrator, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellants

Supreme Court of Iowa, Des Moines

May 5, 1904

Appeal from Pottawattamie District Court.--HON. W. R. GREEN, Judge.

SUIT by the plaintiff, as administrator of the estate of Almeda Farrell, to recover for her death. There was a verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.

Carroll Wright, John I. Dille and Saunders & Stuart for appellant.

S. B Wadsworth and John P. Organ for appellee.

OPINION

SHERWIN, J.

The plaintiff's intestate was a girl eight years and one month old at the time of her death. She and other girls of about her age were picking flowers upon the defendant's right of way, and were trespassers thereon. In crossing a cattle guard, one of her feet was caught between the rail and the timbers of the guard, and, before it could be released by herself and a playmate who was assisting her in her efforts, she was run over and killed by the defendant's train. The cattle guard where she was killed was located a short distance south of the appellant's station at Underwood. The course of the track through the town, and for some distance south thereof, is from the northeast to the southwest. It is straight, and has a gradually descending grade for about one hundred and sixty rods southwest of the cattle guard in question.. The accident occurred in the afternoon of a bright May day, and there is no claim made that there was anything to obstruct the view of the engineer of the train after the train reached the straight track, south of the point where the girl was killed. Her foot was caught before the train came into view, over half a mile away, and, during the entire time of its approach, she and her little friend were making every effort to release her from her perilous position. In addition to their efforts, which could be plainly seen from the engine the other girls ran some distance south along the track, and tried to stop the train by waving their hands and by shouting. There was evidence tending also to prove that the danger whistle was sounded soon after the train reached the straight track, and that it was continued until the train was within a short distance of the deceased. The court instructed the jury that the appellant owed the deceased no duty until her peril was known, and that the plaintiff could not recover unless he had established the fact that its engineer observed her danger and peril in time to have stopped the train. The engineer testified that he did not discover the peril of the deceased until his engine was within three hundred feet of her, and it was conclusively shown that his train could not have been stopped in that distance. The jury found, however, in answer to a special question, that her peril was discovered and known to those in charge of the engine when it was one thousand two hundred feet away; and, if this finding is sustained, it is clear that the train could have been stopped, and the accident avoided. It is contended that the testimony of the engineer was conclusive on this point, and that the verdict should not stand. But to this contention...