Gregory v. Wabash Railroad Co.
| Decision Date | 17 December 1904 |
| Citation | 101 N.W. 761,126 Iowa 230 |
| Parties | CHARLES A. GREGORY, Administrator, v. WABASH RAILROAD CO., Appellant |
| Court | Iowa Supreme Court |
Appeal from Appanoose District Court.--HON. M. A. ROBERTS, Judge.
ACTION to recover damages for the death of plaintiff's intestate, due, as alleged, to the negligence of defendant's employes in the operation of a train. Verdict for plaintiff for $ 1,210. From judgment on this verdict defendant appeals.
Affirmed.
Fee & Fee, for appellant.
C. F Howell and W. R. C. Kendrick, for appellee.
Plaintiff 's intestate, a female child about two years of age, was killed by being run over by the engine of a passenger train on the defendant's track, at a place where there was no crossing or footway, either by law or custom; and the questions argued relate to the negligence of the engineer operating the engine, and the measure of damages in accordance with which recovery was allowed.
I. Several witnesses for plaintiff testify as to the speed of the train just before the accident, the question of speed being important in determining whether, after the child was seen by the engineer, he could by the exercise of reasonable prudence and diligence have stopped the train. The witnesses were shown to have traveled on trains and noticed their rates of speed, and it appears to us that they showed themselves to be competent to give an opinion as to the rate of speed at which the train was running. If such witnesses are not competent, then it would be almost impossible to secure any evidence with reference to the rate of speed of a train from other witnesses than the employes of the company operating such train. One who is familiar with the running of trains, and who has general knowledge as to their rates of speed, may give an opinion as to the rate of speed of a particular train which he has observed. Pence v. Chicago, R. I. & P. R. Co., 79 Iowa 389, 44 N.W. 686; Van Horn v. Burlington, C. R. & N. R. Co., 59 Iowa 33, 12 N.W. 752.
II. Plaintiff was allowed to introduce evidence, over defendant's objection, tending to show that no signal or alarm was given by the blowing of a whistle after the engineer saw the child on the track and before the accident. The argument for appellant on this point is that in the case of a child of such tender years the blowing of the whistle would not have served as a warning, but would have been quite as likely to stupefy the child with terror, and thus prevent its escape from the track, as to communicate to it a warning of danger of which it might take advantage for the purpose of escaping. But it seems to us that the question whether, in the exercise of a prudent judgment, the engineer should have given an alarm signal, was one of fact for the jury. Evidence was introduced on each side bearing on this question, and the engineer, as a witness, excused himself for not giving the alarm signal by explaining that it might have had the opposite effect from that intended. We cannot say as a matter of law that the sounding of the whistle would have increased the peril of the child, nor, on the other hand, that a child of such age, if its attention had been attracted by the signal, might not have got off the track and escaped danger. If the latter result would have followed, either by reason of the natural instinct to avoid danger on being frightened, or by reason of the exercise of an intelligent judgment, and if the engineer, in the exercise of a prudent judgment, had reason to believe that in either of these ways danger to the child would have been lessened by giving the signal, it was his duty to do so, and it was proper to leave the question of fact to the jury. It might well be that if the child was not in immediate danger, but was so near the track that if frightened it might put itself in peril, not being of sufficient years of discretion to exercise a prudent judgment, then there would be a good excuse for not giving the alarm signal. But we can hardly see how, in the case of a child actually on the track and unconscious of the approach of a train, any increase of danger would be involved in giving the alarm signal, while there would be some possibility, at least, that the effect of the alarm would be to cause the child to get out of danger by reason of the instinct of self-preservation, if not in the exercise of an intelligent judgment. The question was properly submitted to the jury as one of fact. Masser v. Chicago, R. I. & P. R. Co., 68 Iowa 602, 27 N.W. 776. And see, as having some bearing on the question, though not directly in point, Graybill v. Chicago, M. & St. P. R. Co., 112 Iowa 738, 84 N.W. 946; McGill v. Minneapolis & St. L. R. Co., 113 Iowa 358, 85 N.W. 620.
In this connection, we may notice a criticism of one instruction in which the court explained to the jury that in determining the question of the engineer's negligence they might take into consideration, among other things, "whether an alarm would have had the result to frighten the child, and if so, whether the result would have been to cause the child to remain on the track or to move off the track." It seems to us that this language suggests to the jury, the view which we have above expressed, and is not subject to criticism.
It is also urged in this connection that the defendant was not liable on account of the failure to give the signal after the danger to the child became apparent to the engineer, if the accident would necessarily have happened even if the signal had been given. Of course, this is true, but we think it was properly left to the jury to say whether the accident would probably have been avoided if such signal had been given. In this respect the jury were fully and properly instructed.
III. Counsel contend that in rulings on evidence, in instructions to the jury, and in overruling the motion for a new trial, the court failed to properly apply the rule, recognized in this State, that as to a trespasser upon its track the railroad company is under no duty to look out for his safety until his danger becomes known to those operating the train; in other words, that there is no duty to look out for trespassers, but only a duty on the part of the company's employes, after they are aware that a trespasser is in danger, to exercise proper care to avoid injury to him. There is no controversy as to the correctness of this rule; but we have held that, in determining whether the employes of the company did see the trespasser in time to have avoided injury to him in the exercise of proper care, the plaintiff is not concluded by the testimony of the employes themselves as to when they did in fact become aware of the presence of the trespasser, but that all the circumstances bearing on that question are for the consideration of the jury. Farrell v. Chicago, R. I. & P. R. Co., 123 Iowa 690, 99 N.W. 578; Johnson v. Chicago, M. & St. P. R. Co., 122 Iowa 556, 98 N.W. 312; Purcell v. Chicago & N.W. R. Co., 117 Iowa 667, 91 N.W. 933; Barry v. Burlington R. & L. Co., 119 Iowa 62, 93 N.W. 68. Therefore it was competent to show that the engineer's view of the track was unobstructed for a considerable distance as he approached the child, for this evidence, in connection with the evidence of the engineer that he was keeping a lookout, would bear on the question whether he did in fact see the child sooner than he testifies that he did see it. In this connection, testimony that alarm signals were given before the time when, as the engineer testifies, he did actually see the child, these signals having apparent reference to no other danger or cause of alarm than the perceived presence of the child on the track, was competent as tending in some measure to indicate that the engineer did observe something on the track before, as he testifies, the child was first seen.
IV. Several objections are argued on the theory that the court allowed evidence to be introduced relating to prior fatal accidents caused by an engine in the charge of the engineer who was operating the engine which caused this accident. As an abstract propo...
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