Kellow v. Cent. Iowa Ry. Co.

• Decision Date: 05 June 1885
• Citation: 68 Iowa 470,23 N.W. 740
• Parties: KELLOW, JR., ADM'R., v. CENTRAL IOWA RY. CO.
• Court: Iowa Supreme Court

68 Iowa 470

23 N.W. 740

KELLOW, JR., ADM'R.,

v.CENTRAL IOWA RY. CO.

Supreme Court of Iowa.

Filed June 5, 1885.

Appeal from Cerro Gordo circuit court.

Plaintiff's intestate was killed while traveling as a passenger on one of defendant's trains, and this action is prosecuted for the recovery of the damages sustained by his estate in consequence of his death. The cause was tried to a jury, who returned a verdict for defendant. Plaintiff filed a motion for a new trial in which he alleged 21 grounds for setting aside the verdict. This motion was sustained as to one of the grounds alleged, and overruled as to all the others. Both parties appeal; defendant's appeal being first perfected.H. E. J. Boardman, J. H. Blair, and A. C. Daly, for appellant.

J. T. Stoneman and H. T. Reed, for appellee.

REED, J.

The accident in which decedent lost his life occurred at Mason City Junction between 9 and 10 o'clock on the evening of the twenty-first of June, 1881. Defendant's railroad runs north and south, and at the place where the accident occurred it crosses the main line of the Chicago, Milwaukee & St. Paul Railway. This latter company has a yard situated about one-half mile west of the crossing, and a branch road operated by it and known as the “Austin Branch,” runs in a north-easterly direction from this yard, crossing defendant's track some distance north of the point where it crosses the main line of the other road. On the east side of defendant's road there is a track called the “Transfer Track,” which is used in transferring cars from one road to the other. This track connects with defendant's road at a point about 80 feet north of the crossing, and with the track of the Austin Branch some distance north-east of the point where it crosses defendant's road.

The companies used a common depot, which is situated in the angle west of defendant's track, and north of the main line of the other road. The train in which plaintiff's intestate was traveling came from the south. When it approached the station it was stopped at a point about 500 feet south of the crossing. There was no train due at that hour on the other road, and none was within sight or hearing of defendant's train-men at the time. The three rear cars of defendant's train were to be transferred to the Chicago, Milwaukee & St. Paul Company to be taken by it to St. Paul, Minnesota, on the Austin Branch. When the train moved up to the station it was stopped when the baggage car arrived opposite the door of the baggage room. This brought the front platform of the rear passenger car immediately over the crossing. Decedent entered the train at Marshalltown and rode in this car. He was ticketed to a point on the Austin Branch between Mason City Junction and St. Paul. It was the custom of defendant to stop its north-bound trains on the crossing, as was done at the time in question, and this custom was known to the employes of the other company. The labor of transferring baggage and express matter to and from the train was more conveniently performed when the baggage and express car was stopped opposite the door of the baggage room in the depot, and the transfer of cars to the other road was facilitated by dropping them from the train at a point south of the switch connecting the transfer track with defendant's track. The trains were stopped on the crossing as a matter of convenience in transacting the business at that point, but there was no absolute necessity for stopping them there.

At about the time the train arrived at the station the employes of the Chicago, Milwaukee & St. Paul Company were engaged in getting the engine which was to haul the train to St. Paul out of the yard west of the crossing, and they found it necessary, in order to permit the passage of the engine on the track of the Austin Branch, to move a number of cars from a side track onto the main track. There is a sharp down grade in the main track from a point east of the yard to the crossing. A portion of the cars were pushed onto this grade, and five of them, which were loaded, parted from the others, and ran down the grade to the crossing, striking the passenger car in defendant's train, which stood on the crossing, with sufficient force to throw it from the track and turn it over on its side in the ditch. The train had been at the station about four minutes when the the collision occurred. The moving cars were discovered by an employe of defendant when they were a short distance from the crossing, and he made an effort to get on one of them for the purpose of applying the brakes, but finding that he would not be able to accomplish this before the collision, he jumped off. The passenger car was broken up to some extent by the collision, and the deceased was found under a portion of the wreck. Life was not yet extinct when he was found, but he died before he could be removed from the wreck. The engineer left his engine when the train stopped, and had not returned to it when the collision occurred. The fireman, however, remained on the engine, but no effort was made to move the train after the cars were discovered approaching the crossing. It was the custom of each of the companies to stop all trains at about 400 feet from the crossing, and this custom of each company was known to the employes of the other. It was not the custom to send out flag-men on the track of the other road when a train was stopped on the crossing, and none was sent out on the occasion in question.

1. The circuit court gave 25 instructions at the request of the defendant. The ground upon which the motion for a new trial was sustained was that the court erred in giving these instructions. While some of these instructions correctly express the law of the subject to which they relate, the court might properly have referred them as a whole. The charge given by the judge on his own motion covered every question involved in the case, and clearly, and in the main correctly, stated the law of the case; so that there was no occasion for giving the instructions asked by counsel. Many of them were but repetitions in other forms of what had already been given by the judge. Some of them, while being correct in the abstract, were so framed as to be well calculated to mislead the jury; and others, we think, are positively erroneous. One of them is in the following language: “As aids to assist you in determining whether it was or was not negligence for the railway company to permit its train to stand upon the crossing, you may consider the time; whether any train was due upon the railroad crossing defendant's railroad; the position of the baggage room at that point, and the convenience in discharging baggage and express there; the fact of the connection of any other railroad, and its manner of connecting with defendant's train; the length of time defendant's train stood upon the crossing; the stopping of all trains upon both roads before going upon the crossing; and all other facts and circumstances elicited by the evidence.”

In effect, the jury are told by this instruction that in determining the question whether defendant was guilty of negligence in permitting the train to stand upon the crossing they might consider the fact that the baggage and express matter could be more conveniently discharged at that point than at the one at which it would have been discharged if the train had not been stopped until all of the cars had passed over the crossing. This is clearly wrong. The duty which defendant owed its passengers was to so manage the train as that they would not be exposed to any danger which human foresight and care could apprehend and provide against. And the question whether it was an act of negligence to stop the train upon the crossing depends entirely upon whether the passengers were thereby exposed to such danger; and in determining that question it is manifest that the fact that, by stopping the train at that point, the baggage car was placed in such position, with reference to the baggage room, as that the express matter and baggage could be conveniently handled, is entitled to no consideration whatever. It has no tendency to prove that the passengers in the car were exposed to such danger by the stopping of the train at that point, or to disprove it.

Another instruction given at defendant's request is in the following language: “The only act that plaintiff charges against this defendant is that it permitted its train to stand upon the railway crossing at Mason City Junction. You are now instructed that even though you find this defendant did permit its train to stand upon the railway crossing, and that while so standing the plaintiff was injured by the train or cars of another company running into the train in which plaintiff was, this, of itself, is not negligence; and upon the mere showing of this, without more, the plaintiff is not entitled to recover.” This instruction assumes that the only act of negligence complained of by plaintiff was the stopping of the train on which the deceased was traveling upon the crossing. But it is alleged in the petition, not only that the train was negligently stopped upon the crossing, but that the cars of the other company were, through defendant's negligence, allowed to run into and collide with defendant's train; and there was evidence tending to prove that irregular trains,--that is, trains that were not run upon any regular schedule time,--frequently passed upon the other road, and that the couplings of heavy freight trains were liable to break, and cars by that means escape from the control of the train-men, and that a train standing upon a crossing was always in some danger of being run into by such trains or by cars which had broken loose from freight trains.

There was also evidence tending to prove that if a flag-man had been sent a short distance west of the crossing he might, by climbing upon the cars which collided with the train, and applying the brakes,...