Grosjean v. Chi., M. & St. P. Ry. Co.

• Decision Date: 19 November 1909
• Citation: 123 N.W. 162,146 Iowa 17
• Court: Iowa Supreme Court
• Parties: GROSJEAN v. CHICAGO, M. & ST. P. RY. CO.

146 Iowa 17

123 N.W. 162

GROSJEAN

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Nov. 19, 1909.

Appeal from District Court, Muscatine County; A. J. House, Judge.

Action at law to recover damages for injuries occasioned to plaintiff's cattle in a collision with defendant's engine on a highway crossing. Judgment for plaintiff, and defendant appeals. Affirmed.J. C. Cook, Jayne & Hoffman, and John N. Hughes, for appellant.

Richman & Richman and E. M. Warner, for appellee.

WEAVER, J.

The plaintiff received a consignment of steers shipped over defendant's road to the town of Cranston in Muscatine county. The cattle, 47 in number, were safely unloaded at the station and taken in charge by plaintiff's two sons, who undertook to drive them to the feedyards at their home. Their route took them along a highway running directly west from the station and immediately north of the track and parallel thereto for a distance of about 120 rods, where it opened into another highway extending north to plaintiff's yards and south across the railway. In getting the cattle started west they had become scattered or “strung out” to a considerable distance along the road, so that, when the young men had brought the rear of the herd about half the distance to the corner, several head of steers had reached the corner, and some of them had turned south and over the railway crossing. About the same time the drivers discovered the smoke of an engine apparently a half mile to the east and moving west, whereupon one of them, being mounted upon a horse, started down the track at a rapid pace to reach the crossing ahead of the engine and prevent a collision there if possible; but the speed of the engine, which did not stop at the station, was such that he was unable to accomplish his purpose. The engine passed him and collided with several of the cattle, killing two and injuring a third, and this action was brought to recover damages, on the theory that the accident was the result of the defendant's want of reasonable care in the premises. The charge of negligencein the petition is based: First, on the act of the engineer in operating the engine at more than eight miles an hour on the station grounds in violation of the statute; and, second, that before plaintiff had reasonable time to get his cattle clear from the uninclosed station grounds the approach of said engine at such excessive speed and the sounding of its whistle frightened the cattle, causing some of them to go upon the track. He further alleges that the track was free and clear from obstructions, and that the peril of the cattle on the crossing was seen, or could easily have been seen, by defendant's employés in charge of the engine in time to have avoided the injury. The defendant took issue by denial of the claim made in the petition, and there was a trial to a jury.

There was no motion to direct a verdict; but on request of the defendant the court gave the jury five instructions, as follows: “(1) The fact the cattle in question had arrived at the station over the road of defendant is entirely immaterial upon the question of defendant's liability. The situation is no different from what it would have been had plaintiff's sons been driving the cattle along the same road, which had not been shipped over defendant's railway. (2) Defendant is not to be found guilty of negligence because of the speed with which the train approached the crossing, unless the employés saw, or in the exercise of ordinary care should have seen, indications which should have caused a reasonably prudent man to anticipate that a part of the drove of cattle were likely to attempt to cross the railroad track, and to be struck by the train. In the absence of any such indications of danger, the engineer would have the right to pass over the crossing at any rate of speed consistent with the safety of the train. (3) Even if you believe from the evidence that defendant's employés saw, or in the exercise of ordinary care should have seen, a number of cattle at or in the immediate vicinity of the point where the east and west highway joins the north and south highway, still, under the evidence in this case, that fact would not require of the engineer that he stop or...