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

• Decision Date: 08 June 1881
• Citation: 56 Iowa 166,9 N.W. 116
• Parties: HART v. C., R. I. & P. R. CO.
• Court: Iowa Supreme Court

56 Iowa 166

9 N.W. 116

HART

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

Supreme Court of Iowa.

Filed June 8, 1881.

OPINION TEXT STARTS HERE*116DAY, J.

A petition for a rehearing was filed in the foregoing case, in which the opinion, is assailed with much earnestness and vigor. Some of the positions taken in the petition for a rehearing seem to merit and require notice in a supplemental opinion.

1. It is said that the doctrine of the tenth instruction, considered in the foregoing opinion, is “this, and no more: that it was not our duty to have a flagman to give warning of other than trains approaching or about to approach a crossing; and that the duty to have one there, even, resulted from the common law, and not from any statutory obligation.” It is claimed that this is the law, and that no one does or can deny it. It is very evident, however, from the branch of the opinion devoted to this instruction, that this is not the question with which it deals. The instruction goes further than as set out above, and directs that “at common law it is only required that defendant shall have flagmen at crossings * * * 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.” It is the portion of this instruction which limits the duties of flagmen to preventing of collisions, by persons on the highway with moving engines and cars, that we considered and condemned in the foregoing opinion. Hence we cited a case in which the injured person approached no nearer than 36 feet to the defendant's track when he was injured, not by collision, but by the kick *117of his horse, frightened by a moving train, and in which it was held that the duty of a flagman extends to the giving of warning, which would have enabled him to protect himself from such injnry.

2. It is claimed that in none of the cases cited in the opinion were the engines and trains receding from the crossing, and that they are, therefore, all inapplicable. It is further claimed that no case can be found where a recovery has been had for an injury sustained whilst the engine and train were receding. The point determined in the cases cited and in the foregoing opinion is that it may be negligence for the company to make noises calculated to frighten the animals of travelers without giving any warning or notice thereof, and that for an injury resulting the company may be held liable, even when no actual collision occurs. It...