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

• Decision Date: 29 October 1902
• Citation: 92 N.W. 40,118 Iowa 349
• Parties: KINYON v. CHICAGO & N. W. RY. CO.
• Court: Iowa Supreme Court

118 Iowa 349

92 N.W. 40

KINYON

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

Supreme Court of Iowa.

Oct. 29, 1902.

Appeal from district court, Harrison county; O. D. Wheeler, Judge.

The opinion states the case. Reversed.

C. O. Kellogg, for appellant.

Hubbard, Dawley & Wheeler and Thomas Arthur, for appellee.

WEAVER, J.

The plaintiff, being the owner of 39 steers, was driving them along the public highway and over a crossing of the defendant's railway track. Before the passage was entirely accomplished, a train moving at a high rate of speed approached the crossing, and a collision occurred, in which 6 of the steers were killed. The plaintiff alleges that this loss of his property was occasioned by the negligence of the railway company in the following particulars: That the whistle of the engine was not sounded as required by law; that the whistle was not sounded at all on approaching the crossing until within less than 60 rods of the crossing; that the view of approaching trains at the crossing was obstructed by a curve of the road through high banks, surmounted by brush and weeds; that the train was running at a dangerously high rate of speed, which was not slackened until within 30 or 40 rods of the crossing; that at the same time defendant had negligently allowed several cars to stand near the crossing on the side of the main track from which plaintiff was approaching, thus further obstructing the view in the direction of the approaching train; and that by reason of the negligence so charged, and without contributory negligenceon his part, his property was injured and destroyed; and he asks a verdict for damages. The defendant denies all the allegations of the petition. There were a verdict and a judgment for the defendant, and plaintiff appeals.

Upon the trial the ownership of the cattle by plaintiff was conceded, as also that they were killed by collision with defendant's engine at the time and place charged; the only contest remaining being upon the question of defendant's alleged negligence in respect to such accident, and plaintiff's want of contributory negligence. The plaintiff's evidence tended to show that, with the aid of one Jones, he was taking the herd along a highway running near and parallel to the defendant's right of way, and on approaching another road, which crossed the railway at right angles, Jones rode his horse to the front, and turned the cattle in the direction of the railway crossing, while plaintiff followed behind them; that the cattle were moving in a bunch of about 50 feet in length along the path; that Jones went to the railway crossing and looked and listened for approaching trains, and, discovering none, allowed the cattle to cross the track, but before the passage was effected the collision occurred. There was, to say the least, some evidence tending to sustain each of the allegations of negligence set out in the petition. Most of it is denied by defendant's witnesses, but the truth of the dispute was in each instance a matter for the jury.

At the conclusion of the testimony the plaintiff requested the court to instruct the jury as follows: “(1) You are instructed that a traveler about to approach a railroad, intending to cross at a public crossing, has a right to presume that the whistle of an engine will be sounded, as required by statute, at least sixty rods before arriving at the crossing. So, if you find that in this case the plaintiff and the man Jones looked and listened before crossing the track at the time of the accident, they had a right to rely upon the fact that the whistle would be blown, and they were not obliged to continue looking and listening for the approach of a train. (2) You are instructed that the testimony in the case shows that the crossing at the place where the accident occurred was a dangerous one, and it was the duty of the engineer in charge of the train which collided with the cattle to have sounded the steam whistle of the engine in sufficient time to have warned plaintiff, approaching the crossing, so that the accident could have been avoided by the use of ordinary care on the part of the plaintiff. (3) You are instructed that the statutes of the state require that the whistle of each locomotive engine must be sounded at least twice, sharply, at least sixty rods before arriving at a public highway crossing over the railroad at grade; but at a dangerous crossing, such as the one in controversy, if the train should be running at a high rate of speed, whistle should be sounded at a greater distance, if it is necessary to do so in order to warn travelers about to cross the track at said crossing.” These requests were refused. In the instructions given upon its own motion, the court, in effect, withdrew from the consideration of the jury all allegations of negligence, except the one based upon the alleged failure of the defendant to sound the warning signal at least 60 rods from the crossing. Of these instructions, it is necessary to set out only the following: “(2) It is claimed by the plaintiff that the defendant's agents and employés were negligent in failing to sound the necessary warning by whistle when approaching the crossing in question, and that by reason of such failure the cattle in suit were run upon and killed. This is the only particular wherein plaintiff claims that the defendant was negligent, and will be the only one considered by you in your determination of the case.” “(4) It must appear from the evidence that the defendant, in operating the train in question, was negligent in failing to sound the whistle as required by law in approaching said crossing. This is the matter wherein plaintiff claims defendant was negligent. The statutes of this state, among other things, provide: ‘A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached,’ etc., ‘and the company shall be liable for all damages which shall be sustained by any person by reason of such neglect.’ If it appears from the evidence, by the greater weight thereof, that at the time the accident in question, in which plaintiff's said cattle were killed, the employés of defendant in charge of the engine hauling said train failed to twice sharply sound the whistle on said engine at least sixty rods before reaching said crossing, such failure on the part of such employés would be sufficient to constitute negligence in the operation of said train on the approach of said crossing. But unless it appears from the evidence, under the rules above given, that said employés of the defendant did fail to sharply sound said whistle twice at least sixty rods before reaching said crossing, then the plaintiff cannot recover. Whether said employés did sound said whistle, at least sixty rods before approaching said crossing, twice, sharply, as above required, is a question of fact to be determined by you from all the testimony before you throwing light thereon. This is one of the main questions of fact to be decided by you, and should be the first one decided by you when you begin the consideration of the case.” “(8) If you find from the evidence that plaintiff or said Jones heard the approaching train when it was sixty rods or more north of said crossing, then the failure to sound the whistle, if any such there was, did not cause or contribute to such accident, and you should find for the defendant. (8 1/2) There is some testimony before you showing that the plaintiff did not stop said cattle, or cause the same to be stopped, until he could ascertain whether or not a train was approaching. He is required to use ordinary care and caution,--such care and caution as an ordinarily prudent man would use under like circumstances,--and, if such care and caution would require that he stop said cattle to investigate, then a failure to do so would constitute negligence upon his part, and he cannot recover. But unless ordinary care and caution, under the facts of this case, would require that he take such step, and stop said cattle for such purpose, he would not be negligent in failing to do so.”

1. There was error in withdrawing from the jury all question of defendant's negligence, other than the alleged failure of the trainmen to signal for the crossing. The negligence charged in the petition is not predicated alone upon the naked failure to sound the whistle at least 60 rods from the crossing, but upon that fact taken in connection with the high rate of speed at which the train is claimed to have approached, and the obstructions by which the view of the track in the direction of the train was limited or obscured. Plaintiff was entitled to go to the jury upon every fact alleged in his petition and denied by the answer, so far, at least, as evidence had been produced tending to sustain them; and, as we have already said, there was testimony proper to be considered upon each of the several allegations of negligence. It is very possible that proof of any one of the matters charged would not have been sufficient to justify a finding of negligence against the defendant, and yet, when considered together, they may be ample to sustain such a verdict. For instance, it is a settled doctrine in this state that the movement of a train at a very high rate of speed is not in itself negligence (McKonkey v. Railroad Co., 40 Iowa, 205;Cohoon v. Railway Co., 90 Iowa, 174, 57 N. W. 727); but it has never been held that a high rate of speed may not, under some circumstances, become negligence. In Artz v. Railroad Co., 44 Iowa, 285, discussing the effect of an instruction that “the rate of speed, though not regulated by law, may be considered with other facts tending to establish negligence,” we said: “While a railway is not restricted by law to any rate of speed, unusual speed at crossings or at other places where men or brutes may be exposed to danger from passing trains may be...