Grafton v. Delano
| Decision Date | 26 November 1915 |
| Docket Number | 29928 |
| Citation | 154 N.W. 1009,175 Iowa 483 |
| Parties | ADA JANE GRAFTON, Administratrix, Appellee, v. FREDERICK A. DELANO et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED FRIDAY, APRIL 7, 1916.
Appeal from Page District Court.--E. B. WOODRUFF, Judge.
ACTION at law to recover damages on account of the death of Andrew P. Johnson. Verdict and judgment for plaintiff, and defendants appeal.
Affirmed.
J. L Minnis, N. S. Brown, and Jennings & Mattox, for appellants.
Earl R Ferguson and C. R. Barnes, for appellee.
The accident in question occurred near the defendant's railway station at the incorporated town of Blanchard, in Page County. While the general course of the railway is east and west, its track curves, as it enters the town from the east, and runs thence substantially due north for a considerable distance. Some 1,500 feet or more north of the station is a stockyard or stock pen, adjacent to the track on the east side. On the opposite side and near the right of way is a slaughterhouse and stock pen. From this house running north about 300 feet, where it turns at a right angle eastward and thence across the tracks, is a lane or road, affording communication between the public street on the east side of the right of way and the slaughterhouse and stockyards. It is graded up to afford approach to the crossing for teams and vehicles, and the crossings of both main and side tracks are planked for that evident purpose. Across the entrance to this lane on the west side of the track is a gate, but the evidence is sufficient to justify the finding that it was usually left open. The crossing has been maintained in this manner for 10 years or more, and there is evidence to the effect that it was in quite constant use, especially by those having occasion to visit the stockyards and slaughterhouse. The intestate, Johnson, was employed as a butcher and teamster, and in the course of his duties made frequent trips through the lane and over the crossing and was familiar with the surroundings. On January 12, 1912, accompanied by Ralph Johnston, 13 years of age, a son of his employer, he had driven to the slaughterhouse, and on the return trip, both man and boy were struck and killed on the crossing, by the defendant's train moving north. The train in question is known in the record as No. 1, and was due at Blanchard at 7:46 A. M. On this occasion, it was an hour and a half late and moving at a high rate of speed--probably not less than 45 miles an hour. The weather was cold--the mercury standing at or near zero. Snow had fallen to a depth of several inches, and there was some wind from the northeast. Owing to the curve east of the station and intervening obstacles, the approach of a train from that direction would be obscured from a person in the vicinity of the stockyards crossing. Upon the question whether a train after passing the station would, under all the circumstances shown, be in clear view from this crossing, the testimony is not so explicit or undisputed as to render its disposition a matter of law. The appellants' theory is that there must have been a view of the approaching train had the deceased looked after passing the line of telegraph poles about 25 feet from the track. The fireman upon the engine, whose place was upon the west side of the cab, saw nothing of the deceased or the boy until after the collision. The engineer, sitting on the east side, saw nothing except at the very instant of the collision, when he caught a glimpse of the horses only about four feet ahead of the engine, according to his estimate, and at once sought to stop, but ran on about 1,500 feet before bringing his train to a standstill. No living witness appears to have seen how deceased approached or entered upon the crossing or what precaution he took, if any, against being run down by a passing train. The plaintiff charges the defendant with negligence in failing to sound any signal of the approach of the train to the Blanchard station; in sounding no signal or alarm of its approach to the street crossing between the station and the lane crossing where the deceased was killed; and in operating the train at a rate of speed which, under the surrounding circumstances, was excessive and dangerous, and without any care to look out for the safety of persons who might lawfully be upon the crossing. Defendant denies all charges of negligence, and avers that deceased contributed to his own death by his own want of care. The issues of fact were found against the defendant by the jury, and we have to consider whether any reversible error was committed by the trial court with reference to the matters argued and submitted upon this appeal.
I. It is the contention of the appellant that deceased was chargeable with contributory negligence as a matter of law. The exception cannot be sustained. The foregoing statement of facts finds fair support in the testimony offered in plaintiff's behalf, and we think it very manifest therefrom that the circumstances were amply sufficient to carry to the jury the question whether the deceased was in the exercise of due care. Indeed, the conceded fact that no living witness saw him as he approached the track, or is able to say what precaution he took, if any, or what, if anything, he omitted to do which he ought to have done, of itself brings into effect the presumption that he did what the average reasonable and prudent person would ordinarily do under the circumstances by which he was surrounded. See Dalton v. Chicago, R. I. & P. R. Co., 104 Iowa 26, 73 N.W. 349, and the numerous cases in which that precedent has been followed. Nor can we argue that the effect of this presumption is rebutted as a matter of law by the other circumstances shown in the record. Even if the deceased, as he turned to the crossing, saw or heard the train as it approached the station a third of a mile away, we cannot say that, as an ordinarily prudent man, he was bound to anticipate that it would, without stopping or moderating its speed, plunge through the yards and over the crossings, rightfully open to the use of the public, in a manner to render hazardous his attempting to cross the track at that time. Indeed, so far as shown, he may have attempted to stop in a place of safety and found himself unable to control his team in the stinging cold of the morning and the excitement occasioned by the sudden approach of the train. True, there is no evidence that this did occur, nor is there any evidence that it did not, but the presumption to which we have referred was sufficient to justify the jury in the inference that he did all that a prudent man could reasonably be expected to do to avoid exposure to sudden and violent death from the train which bore down upon him.
Upon the further question whether there is evidence to support the charge of negligence made against the company, we are satisfied that plaintiff made a case for the jury. While doubtless the company was within its legal rights in passing through the town without stopping at the station or at the crossings, it was nevertheless bound to exercise that right with reasonable regard for the safety of the people lawfully using the ways leading across its tracks. There is evidence, as we have before noted, that the train approached and swept through the town and the railroad yard where the accident occurred at a very high rate of speed, and without the usual or other adequate warnings of its approach. That persons rightfully traveling upon the streets and ways might be upon or approaching the crossings must have been, or at least ought to have been, anticipated by those in charge of the train; but so far as the record shows, it seems to have been disregarded. The fact, too, that neither the fireman nor the engineer discovered the deceased or his team until the very instant of the collision has some tendency to show that they were not maintaining any efficient lookout.
For the purposes of the appeal, this court is bound to give the testimony upon these issues the most favorable construction of which it is fairly susceptible in support of the verdict of the jury, and when this is...
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