Haden v. Sioux City & P. R. Co.
| Decision Date | 19 October 1894 |
| Court | Iowa Supreme Court |
| Parties | HADEN v. SIOUX CITY & P. R. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Harrison county; A. Van Wagenen, Judge.
Action for personal injuries. Judgment for plaintiff, and the defendant appealed. Affirmed.John B. Hawley, B. T. White, and J. W. Barnhart, for appellant.
S. H. Cochran, for appellee.
This case was before in this court, and reversed. It is reported in 48 N. W. 733, and the facts need not be restated. The petition charges negligence on the part of the company in the separation of its train, and also negligence on the part of the brakeman in charge of the rear section, by which the plaintiff was injured. On the former appeal we held that there was an absence of evidence tending to establish negligence on the part of the defendant, and that the evidence, without conflict, showed negligence on the part of the plaintiff.
1. It seems to us that the verdict on this appeal has good support in the evidence, independent of the question of contributory negligence. It will be seen that on the other appeal a controlling fact on the question of the negligence of the brakeman was the nearness of the rear section of the train when plaintiff stepped on the track in front of it, it being understood that it was about 30 or 40 feet, and that no additional diligence would have avoided the accident. On this appeal the testimony tends strongly to show that when he stepped on the track the rear portion of the train was 400 feet away. On this point the evidence is in decided conflict. The brakeman who was on the rear section says he saw plaintiff when he “started to step in on the track.” If, then, the part of the train was 400 feet away, instead of 30 or 40 feet, just the reverse of our former conclusion would be true, and additional precautions might have been demanded by reasonable diligence, and have been available to avoid the accident. At least, such questions, under the present condition of the record, would be for the jury. Now, take it as an established fact that the brakeman saw plaintiff step on the track, as he says he did, and then take the fact, as the jury was warranted in finding it, that the section of the train was at that time 400 feet away; and, even though it was negligence for the plaintiff to step on the track without looking to see if the other part of the train was approaching, the jury might conclude that the accident could have been avoided by due care on the part of the brakeman after he discovered the danger to plaintiff. If so, under a well-recognized rule, there could be a recovery. That the brakeman regarded plaintiff in danger is shown by his own testimony, and he saw him when he stepped on the track. He thinks that he was then from 40 to 45 feet away, so that there was not time to set another brake than the front one, on which he sat. Other witnesses say the distance was 400 feet, and if so the reasoning of the former opinion would not apply now; and the jury might find that with diligence another brake could have been set, and the accident avoided, after the brakeman should have thought him in danger. We may further say, under the present state of the record, from which the jury might have found that the cutting of the train, as was done on the day of the accident, when going north, was such a departure from the usual manner of operating it, and the further fact that the plaintiff was not familiar with the movements of the train at that point, that we could not disturb the verdict, if based on such a finding of negligence, and also a want of negligence on the part of the plaintiff, instead of upon the negligence of the brakeman alone after the danger was discovered. It is not important that we should make further...
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