Lorenz v. Burlington, C. R. & N. Ry. Co.

• Decision Date: 25 January 1902
• Citation: 88 N.W. 835,115 Iowa 377
• Court: Iowa Supreme Court
• Parties: LORENZ v. BURLINGTON, C. R. & N. RY. CO.

115 Iowa 377

88 N.W. 835

LORENZ

v.BURLINGTON, C. R. & N. RY. CO.

Supreme Court of Iowa.

Jan. 25, 1902.

Appeal from district court, Floyd county; J. F. Clyde, Judge.

Action to recover damages for the death of plaintiff's intestate, alleged to have been caused by negligence of defendant. Verdict for plaintiff. From judgment thereon, defendant appeals. Affirmed.Ellis & Ellis and S. K. Tracy, for appellant.

P. W. Burr, for appellee.

McCLAIN, J.

Deceased was struck by a train on defendant's road at a street crossing, and instantly killed. At the time of the accident he was attempting to head off and drive back a cow which had escaped from his control, and had gone along the street to the crossing and stopped there. Her stopping was due to the barking of a dog which had met her, and continued to obstruct her progress and to bark violently at her while deceased was approaching. There is a conflict in the evidence as to whether proper signals were given by the engineer in charge of the train, and therefore the question of defendant's negligence was properly for the jury. It is also claimed that the train was negligently run at a high rate of speed. The contention of appellant is that deceased was plainly, and as a matter of law, shown to have been guilty of contributory negligence in being on the track before the approaching train at a place where he might, by reasonable care in looking and listening, have seen the danger and escaped it, and that therefore the lower court erred in not directing a verdict for defendant. It is further contended that the court erred in instructing the jury in such a way as to allow them to determine whether the facts and circumstances surrounding the accident were of such a dangerous, complicated, and confusing character as would be calculated to cause a person of ordinary prudence and caution, under the same conditions, to forget for the instant his dangerous position. It is to be borne in mind that one who is guilty of contributory negligence in connection with his injury is precluded from recovering for such injury not because of a direct breach of duty towards the person whose negligence has primarily caused the injury, but because he cannot recover for an injury to which his own fault has in any way contributed. The negligence of the one party and the contributory negligence of the other are wholly distinct and independent considerations, and the contributory negligence of the person injured may preclude recovery by him, although it had no influence or effect whatever on the party causing the injury, or, for that matter, was entirely unknown to him. Therefore, in determining what constitutes contributory negligence, we are not to consider what care the person causing the injury had reason to suppose the...