Hoffard v. Ill. Cent. Ry. Co.

• Decision Date: 05 February 1907
• Citation: 138 Iowa 543,110 N.W. 446
• Parties: HOFFARD v. ILLINOIS CENT. RY. CO.
• Court: Iowa Supreme Court

138 Iowa 543

110 N.W. 446

HOFFARD

v.ILLINOIS CENT. RY. CO.

Supreme Court of Iowa.

Feb. 5, 1907.

Appeal from District Court, Crawford County; Z. A. Church, Judge.

Action at law by plaintiff, as administratrix of the estate of Patrick Henry, deceased, to recover damages occasioned by the negligence of defendant as alleged, resulting in the death of said Henry. At the close of the evidence for plaintiff there was a directed verdict and judgment for costs in favor of defendant. Plaintiff appeals. Affirmed.Shaw, Sims & Kuehnle and Sallinger & Korte, for appellant.

Connor & Lally and W. S. Kenyon, for appellee.

BISHOP, J.

Patrick Henry was a section hand and track walker in the employ of the defendant company, and stationed at Arion, Crawford county. It was a part of his duties to inspect the track for a distance of about two miles east of the depot at Arion each Sunday morning. Conforming thereto, he left his home near the depot at about 7 o'clock on Sunday morning, January 12, 1902, and proceeded east to the end of his walk, and then faced about to return home. After going about half a mile, and walking between the rails, he was struck by a train approaching from the east, run down, and killed. A regular passenger train is scheduled to go west through Arion at a little before 7 in the morning, and it appears that on the morning in question it was being run in two sections. The first section passed through before Henry went out upon the track. It is conceded that the engine carried signals indicating that a second section was following, but whether Henry saw the train and its signals, or was otherwise advised of the expected coming of the second section which struck him, is not known. The morning was cold, and Henry wore a cap well drawn down over his ears to keep them from freezing; in one hand he carried a flag, and in the other an instrument for testing the condition of the track. Just east of the place of the accident is a curve in the track. It begins 330 feet east of a highway crossing and extends about the same distance west of such crossing. On the north--this being on the side of the curve--the surface of the ground presents an embankment rising more or less abruptly from the track level to a height of from 15 to 20 feet. The immediate circumstances of the accident were known only to the engine crew of the train. Chapman, the engineer, testified that his train was running from 50 to 55 miles an hour; that he was sitting on the north side of his engine, looking ahead, and that just before he reached the highway crossing he was made aware of the presence of a person ahead on the right of way. He says that at first--and owing to the curve and embankment--he could see only a man's head, and could not tell whether such man was walking on the track or at the side thereof. Further, that he at once sounded the whistle alarm, and a second or two later he came into full view of Henry moving west between the track rails, and apparently unconscious of any impending danger--at least, he did not look around or otherwise pay any attention to the sounding of the whistle alarm or the ringing of the engine bell. Chapman says that at once he put his engine in reverse motion and applied the air brakes to the train--that being all he could do to stop the train--but without avail. In a few seconds more Henry was overtaken and hurled to his death. The point of accident was about 700 feet west of the highway crossing. The statement of the engineer was corroborated in all material respects by the testimony of the fireman. The negligence on the part of defendant charged is fourfold: (1) In failing to give proper warning of the approach of the train. (2) In the excessive rate of speed at which the train was being operated. (3) In not making timely discovery of the presence of Henry on the track, and failing to sound the alarm in time to enable him to escape from the track. (4) In failing to avoid the accident by stopping the train after the presence of Henry on the track was in fact discovered. The answer denied generally,and, in addition thereto, pleaded an assumption of risk and contributory negligence. The motion to direct a verdict, among other things, challenged the right of plaintiff to recover, for that a case of actionable negligence had not been made out. And, as we think the motion was properly sustained on this ground, we shall not be required to give attention to any of the others.

1. The first and third grounds of negligence may be discussed together. We start with the proposition that Henry was an employé of the defendant, and rightfully went out upon the track. It was proven that trains frequently went over the road in separate sections, and that “extras or special trains ran over the line pretty often.” Henry was a man of experience, and presumably familiar with the general course of train operation. The evidence does not disclose that it was customary to notify trackmen of the running of trains in sections, or of extras, or specials, and it is no part of the contention of appellee that it was the duty of defendant to do so. From this it follows that, although Henry went rightfully on the track, he must be held to the expectation that a train might put in an appearance at any moment. And it was his duty to keep a lookout. One may not go blindly and heedlessly to his work where there is danger. Magee v. Railway, 82 Iowa, 249, 48 N. W. 92;Haden v. Railway, 99 Iowa, 735, 48 N. W. 733;Keefe v. Railway, 92 Iowa, 182, 60 N. W. 503, 54 Am. St. Rep. 542. And as the presence of trackmen on the track during working hours is always to be expected, there is the correlative duty on the part of trainmen to keep a lookout for them, and, when discovered, to give warning of the approach of the train. Henry had the right to expect that this would be done. So too, we think that, independent of his not having been discovered, owing to the curve in the track, and the topography of the adjacent surface, he had the right to expect that the whistle and bell signals required by statute to be given for the highway crossing would be given. It has been held, and justly so, that a failure to give such signals is negligence, not only as to persons rightfully attempting to cross the track, but as to persons rightfully on or near the track. “It may be presumed that the statute is intended to warn persons at the crossings of the approach of the cars, and thus enable them to avoid the engine. But the signal enables all persons who may be exposed to danger by the approaching engine to escape it, and such persons may rely upon the discharge of the duty required by the statute, as in all other cases, and act accordingly.” Lonergan v. Railway, 87 Iowa, 755, 49 N. W. 852, 53 N. W. 236, 17 L. R. A. 254;Ward v. Railway, 97 Iowa, 50, 65 N. W. 999.

This brings us to the first question of fact presented: Was there a failure on the part of the enginemen to give the whistle and bell signals at the east quarter-mile post as they approached the crossing? The plaintiff relied upon three witnesses to establish the affirmative of this question. One Tripp, an aged farmer, living to the north of the track and between a half and three-quarters of a mile westerly from the east whistling post, testified that with his wife and grandson he was at breakfast as the train went by, and that he did not hear the sound of whistle or bell. He says that the house was tightly closed as the weather was cold; that there is quite a hill and a willow grove between his house and the crossing; that as near as he could remember the wind was blowing from the south. Mrs. Tripp testified that she did not hear the engine whistle sound or the bell ring, either as the train approached or after it had passed the crossing. She says that a great many trains...