O'Leary v. Chi., R. I. & P. Ry. Co.

• Decision Date: 04 May 1905
• Court: Iowa Supreme Court
• Parties: O'LEARY v. CHICAGO, R. I. & P. RY. CO.

103 N.W. 362

O'LEARY

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

May 4, 1905.

Appeal from Superior Court of Cedar Rapids; J. H. Rothrock, Judge.

Suit to recover the value of a team of horses killed by one of the defendant's trains. There were a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.Carroll Wright, John I. Dille, and S. K. Tracy, for appellant.

Redmond & Stewart, for appellee.

PER CURIAM.

The plaintiff was plowing with the team that was killed in a barrow pit along the defendant's road, and was engaged with other men and teams in widening the defendant's roadbed. His horses were gentle, and used to standing without attendants and without being tied. A team belonging to his father and working on a wheel scraper in the pit ran away, whereupon the plaintiff joined others in their pursuit, leaving his own team standing some 50 feet from the defendant's track. Shortly after he had left them they walked to the track, and while attempting to cross it were struck by the train. There were only five or six cars in the train. When the horses in question were first discovered by the fireman they were walking slowly toward the track about 70 feet ahead of the engine, and after striking them the train ran 200 feet or more before it was stopped. The petition alleged negligence in failing to give signals, in running at an unlawful rate of speed within the city limits of Ottumwa, and in failing to stop the train after the peril to the team was discovered by the trainmen. There was evidence that the work in question had been going on for some time before the accident, and evidence tending to show that no signal of the approach of the train was given. The court instructed, in effect, that a failure to give any warning or signal of the approach of the train would justify a finding that the defendant was negligent, and this is complained of on the ground that there was no evidence tending to prove that there was a “road crossing at such proximity to the place of the accident as would require the ringing of the bell.” There was evidence of a public crossing of some kind about 200 feet east of the place in question, but whether this was a regular highway or street does not clearly appear. The instruction made no reference to the statute (Code, § 2072), and it is doubtful whether the court intended to instruct that a failure to give the statutory signals would be negligence per se. If there was no public highway at the point indicated,...