Lapsley v. Union Pac. R. Co.

• Decision Date: 10 October 1891
• Citation: 50 F. 172
• Parties: LAPSLEY v. UNION PAC. R. CO.
• Court: U.S. District Court — Northern District of Iowa

50 F. 172

LAPSLEY v. UNION PAC. R. CO.

United States Circuit Court, N.D. Iowa.

October 10, 1891

A. S Wilson and S. H. Marsh, for plaintiff.

Wright & Hubbard and Wright & Baldwin, for defendant.

SHIRAS District Judge, (charging jury.)

In this case the plaintiff, as administrator of the estate of Eliza J. Lapsley, seeks to recover against the defendant company for the amount of damages it is claimed was caused to the estate of Eliza J. Lapsley by reason of the fact that in November a year ago Miss Lapsley was killed by an accident happening upon the track of the defendant company. In order to entitle the plaintiff to recover under circumstances of this kind, it is not sufficient simply to show that an accident has happened, and that injury or death has resulted therefrom, the accident being caused by a collision with the train of the defendant upon the road of the defendant company. The burden is upon the plaintiff of going further and showing, in the first instance, by a fair preponderance of the credible testimony in the case, that the accident was caused by negligence upon the part of the railway company. In other words, this action is one that is based on the charge of negligence, and the burden is upon the plaintiff of establishing it in the first instance. In this case there are three allegations of negligence made against the defendant company. Before passing to them, however, I will say, gentlemen, that the main facts in the matter are not in dispute between the parties. The evidence shows without contradiction that in November a year ago Miss Lapsley was in a wagon, being driven along the line of Leech street in this city, and that that street intersects or crosses the line of the defendant company; that while the wagon was being driven over the track of the defendant company it was struck by a train belonging to the defendant company, and that Miss Lapsley was thrown out, and received injuries which caused her immediate death. It is charged in the petition that the defendant company was guilty of negligence in three particulars. In the first place, it is said that there was no proper signal given of the approach of the train. Now, gentlemen, before passing to the particular facts, I should say to you that under the law of Iowa railroad companies have the right to place their tracks and run their trains upon a level with other highways; in other words, under the law of Iowa, a railway track and a public highway, like a street in the city, may be legally placed upon the same grade and intersect each other; so that as a necessary consequence it follows that in passing trains along the track of the railway company and persons driving vehicles along the street, where the street and railway track intersect each other upon the same level, there will be therefore necessarily danger of collision unless proper care is exercised by both parties to prevent a collision at any given time. Therefore, under this law, the railroad company had a right to pass over Leech street,-- to drive vehicles over the same; but by reason of the fact that there would be danger of a collision unless proper care is exercised on the part of both the railway company and the persons using the street or highway, the law imposes upon both parties the duty and obligation of using and exercising proper care,-- such care as a reasonable and prudent man should exercise in view of the circumstances that surround them at the time that either or both parties purpose to make use of the legal right that they have,-- on the part of the railway company of running its train on its line of track over the highway, and on the part of the citizens of passing over the street across the track of the railway company, when they know that there is a liability or a possibility of trains coming along that track. Now, the amount of care or duty that is required by the law is the same as to both. The same rule is applied to both the railway company and to the individual citizen; and that is, as I have already said, the duty of exercising the amount of care and caution and skill that ordinarily prudent men should exercise in view of the circumstances that surround them at the particular time. Furthermore, it is a principle of law that when human life or limb may be put at risk or danger the care and caution and the skill that should be exercised is higher or greater than under circumstances where human life and limb may not be put at risk or danger.

As I have before stated to you, the plaintiff makes in this case three charges of negligence against the defendant company in the running and management of its train at this particular time when the accident happened. The first is that no proper signal was given of the approach of the train. The statute of Iowa requires that, when approaching a crossing where a highway intersects or crosses a railway track, it is the duty of the company to cause the whistle upon the engine to be sounded by two sharp blasts of the whistle, and that the bell must be rung continuously from that time, and from that point, to wit, 60 rods from the crossing, until the crossing is reached, with a proviso that in the case of cities the blowing of the whistle may not be required. In other words, the railway companies, in cases of cities, where they are within the limits of cities, may be excused from giving the signal by the blast of the whistle. Therefore, so far as this case is concerned, as the evidence shows and it is admitted that this accident happened within the limits of the city of Sioux City, the question, so far as statutory obligation is concerned, comes down to the ringing of the bell. Therefore I charge you that the law is, under the statute of Iowa, that the duty and obligation rests upon the railway company of giving a signal when a train approaches within 60 rods of a street or highway crossing by the ringing of the engine bell, and the ringing should be continued, under the statute, from that point up to the time that the locomotive may reach the crossing or highway. Now, it is charged by the plaintiff that this signal was not given, and that, as a consequence thereof, the plaintiff and the person who was injured failed to receive notice of the approach of the train, and thereby the accident happened that caused the death of Miss Lapsley. Of course, as you understand, gentlemen, the purpose and object of requiring a signal of any nature to be given when a train is approaching a crossing or highway is that thereby warning may be given to the parties who are about to pass over the railroad track of the approach of the train, so that they, on their part, may be warned of the approach of the train, and exercise due care for their own protection. Now, gentlemen, it is a question of fact to be determined by you, under the evidence in this case, whether or no this train which struck the wagon, and which caused, in that sense, the death of Miss Lapsley,-- whether or not, as that train approached this crossing or intersection of Leech street, the bell was rung in accordance with the requirements of the statute, and in such manner as to accomplish the purpose of its requirement. The evidence is in conflict upon that subject, and it is for you to determine what the fact is. All I can say to you is that the statute of Iowa requires that notice be given by the ringing of the bell. If the evidence satisfies you that the bell was rung, then negligence in that particular is not shown against the defendant company. On the other hand, if the evidence satisfies you by a fair and reasonable preponderance that the bell was not rung, then that justifies you in finding that in that particular the railroad company, through its failure to observe this statutory requirement, was guilty of negligence; and, if that contributed to or aided in causing the accident, that justifies you in finding that the charge of negligence in this particular is made out against the railway company. It is for you to decide what the facts in that particular are.

The next charge of negligence is that the train was run at a high and unnecessary rate of speed. Now, gentlemen, there is no law in this state that fixes the rate of speed-- that is, the number of miles per hour-- that a train may run under the circumstances surrounding this transaction. The rule therefore, to be applied is the common-law rule-- the common-law rule that the duty and obligation rests at all times upon the railroad company to use proper care-- ordinary care and prudence-- in the running and management of its trains, so that no unnecessary risk or hazard shall be cast upon the public. So you see, therefore, that the question as to the rate of speed, whether it is negligence to run a train at a given rate of speed, depends upon the facts and circumstances surrounding the case. As has been said by counsel, when a train is running out upon the open prairie,-- in the open country,-- where there is not much liability to meet people crossing a track, and other sufficient signals are given, the cars may be run at a high and rapid rate; and there is no law that would require them to check the rate of speed when they are approaching the crossing, if the circumstances and surroundings of that crossing are such that, with the signals that they have given, reasonable warning of the approach of the train is given to the public. You see that is the test. The train must be run at such rate of speed, and accompanied by such signals, as that, as they approach these crossings or highways, a reasonable warning may be given to the public in order that any person desiring to cross may receive reasonable warning of the approach of the train, and be able to take proper care for his own safety. When trains are run into a city or place...