Hinken v. Iowa Cent. R. Co.

• Decision Date: 10 April 1896
• Parties: JOHN HINKEN, Appellant, v. THE IOWA CENTRAL RAILWAY COMPANY
• Court: Iowa Supreme Court

66 N.W. 882

97 Iowa 603

JOHN HINKEN, Appellant, v. THE IOWA CENTRAL RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

April 10, 1896

Appeal from Franklin District Court.-- HON. S. M. WEAVER, Judge.

ACTION at law to recover damages for personal injuries sustained by plaintiff, in an accident at a street crossing, in the town of Hampton. Trial to a jury. The court directed a verdict for defendant, and plaintiff appeals.

Affirmed.

Taylor & Evans and E. P. Andrews for appellant.

Anthony C. Daly, J. H. Scales, D. W. Dow, and Theo. Bradford for appellee.

OPINION

DEEMER, J.

The accident in question happened at a street crossing, in the town of Hampton, about a quarter past 12 o'clock, on the twenty-eighth day of October, 1892. Appellant is a bricklayer by profession, and on the date of the accident, was at work in the southwestern part of the town, west of, and several blocks distant from, the tracks of the defendant railway. His residence was northwest of the place where he was at work, and east of the tracks. About noon he quit work and started on foot for his home. The wind was from the northwest, and quite a gale was blowing. At the place where he attempted to cross the right of way of the railroad company, there are four tracks. The first, on the west, was called the "stock-yard track," the next, the "main line," the third, the "passing track," and the fourth, another side track, known as the "city track." A regular passenger train was due at Hampton, from the south, at 12:05, and on the day in question, arrived ten minutes late. A south-bound train was due, to leave immediately after the arrival of the passenger from the south, and at the time of the accident, was standing on the passing track, awaiting the arrival of the north-bound train. Plaintiff had lived in the town a great many years, and was thoroughly familiar with the tracks and with the time-table of defendant's trains. He knew, when he attempted to cross the tracks, from the fact that the south-bound train was standing on the passing track, that the passenger train had not arrived. Plaintiff, in attempting to cross the main line track, was struck by the north-bound passenger train, and for the injuries received in this collision, brings this suit.

The alleged grounds of negligence are that defendant failed to give any warning of the approach of the train, in that it failed to ring the bell, or sound the whistle of the engine as it approached the crossing; that it caused the train to run at a high and unlawful rate of speed within the town limits; and that it caused obstructions to be placed upon its grounds and side-tracks, so as to prevent the plaintiff from seeing the approaching train, and caused another train to approach the crossing in an opposite direction from that of the passenger train. There was evidence to support some, if not all, of these charges of negligence, and the court did not direct the verdict because of any failure of proof of negligence on the part of the appellee; but because the evidence established negligence on the part of appellant contributing to his injury, and it is with this question we have to deal. Appellant claims he was free from negligence, because the yards and tracks were so obstructed that he could not see the approaching train, that the wind was blowing so hard as to distract his attention, and that the moving of the freight train on the passing track diverted his mind and senses towards it. The evidence shows that there were some obstructions which prevented plaintiff from looking any great distance to the south, except at certain intervals. It also shows, however, that at one place, three or four rods west of the tracks, he had an unobstructed view of the track to the south, and that, after crossing the first, or stock yard track, there was a space of eight feet from any point of which plaintiff might have seen an approaching train for at least twenty-five rods. The plaintiff testified...