Johnson v. Chi. & N. W. Ry. Co.

• Decision Date: 21 May 1894
• Citation: 91 Iowa 248,59 N.W. 66
• Parties: JOHNSON v. CHICAGO & N. W. RY. CO.
• Court: Iowa Supreme Court

91 Iowa 248

59 N.W. 66

JOHNSON

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

May 21, 1894.

Appeal from district court, Tama county; L. G. Kinne, Judge.

This is an action at law to recover damages for a personal injury sustained by C. S. Tenney, the assignor of the plaintiff, by being struck by a locomotive engine on defendant's railway. There was a trial by jury. At the close of the introduction of the evidence in behalf of both parties, on motion of the defendant the court instructed the jury to return a verdict against the plaintiff. From a judgment on the verdict so returned the plaintiff appeals. Affirmed.W. H. Stivers, for appellant.

Hubbard & Dawley, for appellee.

ROTHROCK, J.

1. The motion to direct a verdict was in these words: “(1) There was no evidence that the defendant was guilty of any negligence which caused the injury complained of. (2) The undisputed evidence shows that C. S. Tenney was guilty of negligence which contributed directly to the injury complained of. (3) Giving all of the evidence the greatest weight in favor of plaintiff to which it is entitled, there is no evidence to sustain a verdict in his favor.” The motion was sustained upon the second ground thereof, and the other grounds of the motion do not appear to have been passed upon by the district court. Counsel have presented the case in this court upon the other grounds of the motion as well as upon that upon which the case was determined. Our examination of the wholerecord, and a proper consideration of the arguments of counsel, have led us to the conclusion that the appeal should be determined without disposing of any other question than the negligence of Tenney, the assignor of the plaintiff. It appears from the evidence that Tenney shipped a car load of cattle over defendant's railroad from Montour, in this state, to Chicago, Ill. He accompanied the train, to give attention to his cattle. When the train reached Franklin Grove, in the state of Illinois, it was placed on a side track, to allow another freight train, which was following it, to pass on ahead of the train which was side-tracked. It was in the night, and, when the train was placed on the side track, Tenney and another stock man, from the way car in which they were riding, went forward to look after the cattle. The distance between the main track and the side track was eight feet, and on the other side of the train which was side-tracked there were railroad ties piled up so near the side track that it was inconvenient to pass between the train and the ties so piled up. Tenney was on that side, and probably because the passage was narrow he stooped and went under the train towards the main track, and went onto that track, when he was struck, and terribly injured, by the engine drawing the passing train. The headlight on the approaching train was lighted, and there is no evidence that Tenney looked to see if there was a train approaching on the main track. We think he was required to do so, and for failure to exercise this imperative obligation there can be no recovery. It is true, as claimed by appellant, that a failure to look and listen for an approaching train before going upon a railroad track is not, under all circumstances, contributory negligence as matter of law. There may be complicating circumstances, calculated to deceive or throw a person off his guard, or he may be in terror from apparent peril or other facts, which would excuse the exercise of the care and prudence required by law. But the evidence in this case does not show any such a state of facts. In Laverenz v. Railway Co., 56 Iowa, 689, 10 N. W. 268, it is said that: “Where a person voluntarily goes upon a railroad track, where there is an unobstructed view of the track, and fails, without excuse, to look or listen for danger, as matter of law he is not entitled to recover. He must take his chances of injury from an approaching train upon himself, unless...