Hart v. . C., R. I. & P. R. Co.

• Decision Date: 20 October 1880
• Court: Iowa Supreme Court
• Parties: LOUISA A. HART v. C., R. I. & P. R. CO. JOHN P. HART v. C., R. I. & P. R. CO.

56 Iowa 166

7 N.W. 9

LOUISA A. HART

v.C., R. I. & P. R. CO.

JOHN P. HART

v.C., R. I. & P. R. CO.

Supreme Court of Iowa.

Filed October 20, 1880.

Appeal from Polk circuit court.

The plaintiff Louisa A. Hart claims of the defendant $10,000 on account of injuries alleged to have been sustained through the defendant's negligence. The plaintiff John P. Hart claims $15,000 on account of injuries alleged to have been sustained in like manner. By agreement of counsel the causes were tried together. The petitions of plaintiffs allege, in substance, that they sustained the injuries of which they complain whilst attempting to cross the line of the defendant's road, on Fifth street, in West Des Moines; that the defendant did not have any flagman or watchman at said crossing, or do any act, or take any precaution, to warn travelers not to cross or give them warning of danger; that the defendant's train and engine stood upon its track, east of Fifth street, and within 15 or 20 feet of the beaten line of Fifth street where it crosses the railroad track; that the plaintiffs drove along Fifth street, and were crossing the defendant's track within 15 or 20 feet of the head of the defendant's engine, when the defendant negligently, and without any notice of its intention to do so, caused the drip cocks and valves on said engine to be opened, and the steam and water to escape therefrom with a loud noise, and negligently permitted the bell on said engine to be rung, whereby the horses became frightened and unmanageable, and overturned the buggy, throwing the plaintiffs to the ground and severely injuring them. The causes were tried to a jury, and a verdict in each case was returned for the defendant. The plaintiffs appeal. The material facts are stated in the opinion.Smith & Baylies, for appellants.

Wright, Gatch & Wright, for appellee.

DAY, J.

The evidence tends to establish the following facts: The plaintiffs, John P. Hart and Louisa A., his wife, left their home in Warren county on the morning of January 29, 1878, arrived in Des Moines before noon of the same day, and stopped with friends at the north-west corner of Fourth and Elm streets. They were traveling in a two-seated, open buggy, drawn by a pair of gentle horses. The place where they stopped is two blocks south of Vine street, on which are the principal tracks of the Chicago, Rock Island & Pacific Railroad. Between 3 and 4 o'clock in the afternoon of the same day they resumed their journey to visit relatives some miles north of Des Moines. They drove up Fourth street, crossed the Valley Railroad on Market street, and when nearing Vine street found the Fourth-street crossing blocked by a train of cars standing across it. They then turned west through the alley in the middle of the block to Fifth street, striking Fifth street about 140 feet south of Vine street. When they came upon Fifth street they saw defendant's engine standing upon one of the five tracks on Vine street, facing west, and with its front about at the sidewalk on the east side of Fifth street, where it had been standing for about 20 minutes. Plaintiffs had been informed that the train on the Winterset & Indianola Branch of said road was in the habit of lying there for some time preceding its departure, and that when about ready to go out it was backed down east to the depot between Third and Fourth streets. The engine was, apparently, attached to a train lying in its rear. There was no flagman at the station, nor were any other means provided to give warning of danger. The plaintiffs looked and listened for a sign or signal of motion or danger, and neither seeing nor hearing any, they proceeded to drive across the street. Just as their team had arrived at the street crossing, and as it was about to step upon the first railroad track on Vine street, the steam was let off the engine, the bell was rung, and the engine began to back. The noise frightened the horses, and they immediately backed, cramped, turned, and upset the buggy, by which plaintiffs were thrown upon the ground, and both seriously injured.

When an engine has been standing for some time water forms in the cylinder from the condensation of steam, and it is usual and considered necessary for the safety of the engine for the engineer to open the cocks under the cylinder and expel the water before starting the engine.

1. The court instructed the jury as follows: “10. It is alleged in plaintiff's petition that defendant failed and neglected to provide a flagman at this crossing. There is no statute in this state requiring railroad companies to have flagmen at street crossings, and at common law it is only required that defendant shall have flagmen at crossings very much used, to warn persons about to cross the track of the approach of engines and cars thereto, and to prevent collision by persons on the highway with such moving engines and cars; and the failure to have a flagman at the crossing is immaterial in this case, and not to be considered by you, unless you believe from the evidence that such engine was approaching, or about to approach, towards said crossing.” “13. If, in the testimony, you find no evidence as to what would be the duty of a flagman, then you cannot presume what such duties would be, and, in the absence of testimony as to his duties the want of a flagman would be taken out of your consideration, and would not be proper for you to take into account in making your conclusions as to defendant's negligence.”

First. These instructions are inconsistent, and for that reason erroneous. The tenth instruction directs the jury, as a matter of law, that the duty of a flagman is to warn persons about to cross the track of the approach of engines, and to prevent collisions by persons in the highway with such moving engines and cars. The thirteenth instruction in effect directs the jury that the duty of a flagman is a matter of fact, to be determined from the testimony, and that in the absence of testimony on the subject they cannot determine what the duty of a flagman is. The conflict between the instructions is apparent.

Second. These instructions are not only conflicting, but they are both positively erroneous, to the prejudice of the appellants. The case of Norton v. Eastern R. Co. 113 Maas. 366, is directly in...