LaVerenz v. C., R. I. & P. R. Co.

• Decision Date: 21 October 1881
• Court: Iowa Supreme Court
• Parties: LAVERENZ, ADM'R, ETC., v. C., R. I. & P. R. CO.

56 Iowa 689

10 N.W. 268

LAVERENZ, ADM'R, ETC.,

v.C., R. I. & P. R. CO.

Supreme Court of Iowa.

Filed October 21, 1881.

Appeal from Scott district court.

This is an action to recover damages for a personal injury resulting in the death of James Fisher, plaintiff's intestate, at Wilton, Iowa, in the month of August, 1877. There was a trial by jury, and verdict and judgment for the plaintiff. Defendant appeals.Cook & Dodge, for appellant.

Bills & Block, for appellee.

ROTHROCK, J.

1. The action was commenced in the circuit court of Scott county, and at the March term, 1879, upon a trial, the jury returned a verdict for the plaintiff for the sum of $5,000. A motion for a new trial was sustained by the court upon the ground that it appeared from the evidence that said Fisher was guilty of such contributory negligence as to preclude any right of recovery. At the June term, 1879, of said court the cause was again tried, and a verdict was returned for the plaintiff for $6,000. A motion to set aside the last-named verdict was also sustained. From an order setting aside the verdict and granting a new trial the plaintiff appealed to this court, and the judgment of the circuit court was affirmed. See 53 Iowa, 321. When the cause was remanded to the circuit court the venue was changed to the district court of Scott county. The cause was tried in that court, resulting in a judgment for the plaintiff in the sum of $6,000, and from this judgment the present appeal was taken. To the end that the questions discussed by counsel may be fairly understood, it is necessary to make a brief statement of what we regard as undisputed and material facts in the case.

James Fisher, the plaintiff's intestate, was a farmer and dealer in live stock. and resided in Kansas. On the twenty-seventh of August, 1877, the defendant entered into a contract with one Ward to transport four car loads of hogs from Atchison, Kansas, to Chicago. Fisher signed the contract for Ward, and by the terms of the contract Fisher was to be transported by the same train, without charge, to take care of the stock. The train arrived at Wilton, Iowa, on the afternoon of August 23d. The south-western branch of defendant's road here forms a junction with the main line, and in accordance with the usual custom a new train was made up by changing the engine and caboose car, and parties in charge of stock were required to take passage on another caboose from that used on the south-western branch. There was a delay at Wilton of from 20 to 25 minutes. The train, which was made up to go east, consisted of some 23 or 24 cars, and when made up, ready to start, the engine stood fronting east, and from 160 to 175 feet west of the freight depot, and the train extended back west, the caboose being the last car on the west end. Some five minutes, or a very short time, before the train started, Fisher was in the train-master's office, in the depot, making complaint of the slow time made in transporting the stock in his charge. From the freight depot, running west, there are four railway tracks, nearly parallel, and from seven to nine feet apart. The main track was immediately next to the depot platform on the north. Next to that was another track, on which was Fisher's train, about to start east. North of that was the third track, and at the west end of the depot the fourth track branched off on the south side. A switch or cross-track started from the main track, near the west end of the depot, and crossed to the next track on the north. It was not customary for this train to stop so as to bring the caboose to the platform, and parties desiring to ride on the train were expected to walk back to the caboose. About the time or before the train started, Fisher left the depot platform, apparently on his way to the caboose. He was compelled to cross the main track, and may have crossed some of the other tracks. He was seen, however, walking down west in the space between the main track and the track on which his train was about to pull out. This space was about seven feet nine inches wide between the rails of the two tracks. As he walked down this space toward his train the engine was approaching him on an up grade, laboring heavily, making a loud noise by steam escaping from the top, and, as the evidence tends to show, from the open cylinder-cocks. As he approached the engine he left the space in which he was walking and went upon the main track and walked on west. The engine which pulled in the train on the branch road had been switched over on the main track, and about the time Fisher started for his train this engine was at a water-tank some distance east of the depot. It backed down to the depot and came to a stop, or nearly so, and took on two men, employes of the road. The speed of the engine was increased, and it backed west on the main track, and as Fisher walked upon that track he was struck by the end of the tender in the back and knocked down, and the engine passed over him lengthwise, and he was found dead upon the track, having been crushed by the ash-pan of the engine, as is supposed. These are leading facts, and about which there is no real dispute. It is impossible, in an opinion of ordinary length, to recite all the facts and circumstances which enter into a case of this kind, and which have much to do in determining the rights and obligations of the parties. Other facts will, however, be noticed in determining the questions in the case. It does not appear to be seriously questioned that the jury were warranted in finding that the defendant was negligent in backing the engine upon the deceased. Indeed, taking into consideration the fact that Fisher was a passenger upon the train, and was expected to board the caboose by crossing the main track, at least; that the engine was backed with such speed as to overtake and throw him upon the track and crush him, without being seen by those in charge of the engine; and the further fact that there was evidence tending at least to show that the person in charge of the engine, as engineer, was incompetent to properly manage an engine,--we think we would be weakening the rule holding the carrier of passengers to the highest degree of care if we should determine that there was no warrant in the evidence for finding that the employes of the defendant were negligent.

2. The main question in the case, and that upon which counsel for appellant with confidence rely upon a reversal, is the alleged contributory negligence of the deceased. It is said that because the deceased, when he stepped upon the main track, did not look to see if the track was clear, and because he walked thereon without looking for an approaching train or engine, and while thus walking thereon was killed, his representative cannot recover. We are required to determine whether or not, under the facts and circumstances surrounding the deceased, the court below should have determined, as a question of law, that the...