Lane v. Cent. Iowa Ry. Co.

• Decision Date: 08 October 1886
• Citation: 69 Iowa 443,29 N.W. 419
• Parties: LANE, ADM'R, ETC., v. CENTRAL IOWA RY. CO.
• Court: Iowa Supreme Court

69 Iowa 443

29 N.W. 419

LANE, ADM'R, ETC.,

v.CENTRAL IOWA RY. CO.

Supreme Court of Iowa.

October 8, 1886.

Appeal from Monroe district court.

Plaintiff's intestate, while an employe of the defendant, engaged in the operation of one of its trains, received injuries which caused his death. This action was brought for the recovery of the damages sustained by his estate in consequence of his death. The verdict and judgment were for defendant, and plaintiff appeals.George D. Porter and Henry L. Dashiell, for appellant.

Blair & Daily, for appellee.

REED, J.

The train on which plaintiff's intestate was employed was a construction train, which was used in hauling and distributing sand for ballasting the track. It consisted of 16 flat cars, and a box car, which was used for transporting the tools of the men who were engaged in hauling the sand, and, at the time of the accident, it was returning to the sand-pit, after having distributed a load of sand along the track. The box car was at the front, and the engine and tender at the rear, end of the train. While it was being run in this manner, being pushed ahead of the engine, a cow came upon the track in front of the train, and before it could be stopped the box car struck the animal, and was thrown from the track. One of the trucks under the front flat car was also derailed. When the presence of the cow on the track was discovered, the deceased was on top of the box car. He attempted to escape from the train by descending one of the ladders, and jumping to the ground, but was caught in the wreck and instantly killed. On the trial, when the parties had introduced all their evidence, the district court, on defendant's motion, directed the jury to return a verdict for it, and judgment was entered on the verdict returned in obedience to this direction. The question in the case is as to the correctness of this ruling.

The rule is that the trial court is warranted in taking the case from the jury only in case there is an entire absence of evidence tending to prove some of the facts essential to plaintiff's right of recovery, or when, without conflict, the evidence establishes some matter which defeats his right of recovery. The action of the district court is to be tested by this rule. The allegation of negligence in the petition is that the engineer who was in charge of the engine by which the train was being moved, recklessly and negligently ran it backwards over a road that was new and unballasted, and was also unfenced and unprotected from stock; and, while it was being so run, it struck said cow, and the caboose was thrown from the track, inflicting the injury complained of. There was a conflict in the evidence as to the rate of speed at which the train was being moved; some of the...