Kuehl v. Chi., M. & St. P. Ry. Co.

• Decision Date: 14 February 1905
• Citation: Kuehl v. Chi., M. & St. P. Ry. Co., 126 Iowa 638, 102 N.W. 512 (Iowa 1905)
• Court: Iowa Supreme Court
• Parties: KUEHL v. CHICAGO, M. & ST. P. RY. CO.

126 Iowa 638

102 N.W. 512

KUEHL

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Feb. 14, 1905.

Appeal from District Court, Monona County; John F. Oliver, Judge.

Action at law to recover damages for injury to live stock.Verdict and judgment for plaintiff, and the defendant appeals.Affirmed.Shull & Farnsworth, for appellant.

Will E. Johnston and Geo. H. Clark, for appellee.

WEAVER, J.

The accident complained of occurred upon a crossing of the defendant's railroad and public highway.The highway at this point extends east and west.From the crossing westward the highway has an upward slope to the top of a hill 800 feet distant.Extending northward from the crossing the railroad curves to the west, and disappears around the point of a hill at a distance variously estimated at 600 to 900 feet.On the day in question the plaintiff, with the assistance of three other persons, was driving a herd of 160 yearling and two year old steers from the west along the public road above mentioned.For convenience in handling, the herd was separated into three “bunches,” each in charge of a man on horse back, while the plaintiff and another person rode in a buggy behind the last bunch.The plaintiff's testimony tends to show that the several bunches were moving in somewhat close order, and that when the head of herd reached the crossing plaintiff and his companion had arrived at the top of the hill.It also tends to show that as the first of the cattle approached the crossing the man in charge at that point looked and listened to ascertain if any train was coming, and, discovering none, rode on ahead of the herd to the railway track, where he stopped, and again looked and listened.Satisfying himself that no train was near, he then rode back toward the rear of his section of the herd, which began moving across the track, and almost immediately a passenger train, moving from the north, reached the crossing, and struck and killed eight steers.It is the claim of plaintiff and his witnesses that the defendant's engineer failed to sound the whistle or ring the engine bell, as required by law, in approaching the crossing, and upon this alleged omission the charge of negligence is grounded.

1.For a reversal of the judgment below the appellant relies upon the proposition that the evidence does not sustain the finding of the jury.It is not denied that there was testimony from which the jury might properly have found that defendant was negligent in respect to the crossing signals, but it is said there is nothing to show that this negligence was the proximate cause of the accident.If absolute demonstration that the failure to give a signal is the direct cause of a crossing accident is to be required, no verdict could ever be had against a railway company in an action of this nature.No one can tell what might have been the result had the signal been duly given.The person approaching the crossing might not have heard it.Had he heard it, he might not have heeded it.A thousand other contingencies may be imagined casting some degree of doubt upon the conclusion that the signal, if given, would have prevented the collision.But, taking the ordinary experience of mankind, there is room for a reasonable presumption that a signal at a distance of 60 rods or more gives time for persons at or near the crossing to avoid danger, and that persons of...