Masser v. Chi., R. I. & P. Ry. Co.

• Decision Date: 21 April 1886
• Citation: 68 Iowa 602,27 N.W. 776
• Parties: MASSER v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

68 Iowa 602

27 N.W. 776

MASSER

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

Supreme Court of Iowa.

Filed April 21, 1886.

Appeal from Polk circuit court.

This action was brought by the plaintiff, A. Masser, as administrator of the estate of his son Walter Masser, who was accidentally killed by one of the defendant's trains. The plaintiff averred in his petition that the defendant was guilty of negligence in causing the death of his intestate, and the action is brought to recover damages for the injury. There was a trial to a jury, and verdict was rendered for the defendant. The plaintiff filed a motion for a new trial, based upon alleged error in the giving of each of seven instructions, and in the refusal to give each of twelve instructions, and upon several other grounds so numerous and so general that we cannot set out all the precise errors relied upon. The court sustained the motion upon three grounds, to-wit, the giving of three instructions numbered 6, 8, and 9, and overruled the motion as to the other grounds. The defendant appeals from the ruling sustaining the motion, and the plaintiff appeals from the ruling in not sustaining the motion upon each of 11 other grounds. The defendant perfected its appeal first, and is denominated appellant.Wright, Cummins & Wright, for appellant.

Baylis & Baylis, for appellee.

ADAMS, C. J.

The plaintiff's intestate was, at the time he was killed, between 11 and 12 years of age. He and another boy had gone, without business or excuse, upon the defendant's right of way at a point which was within the limits of the city of Des Moines, but about a half a mile west of any street of the city crossed by the road. The track at that point was fenced on both sides, and to a considerable distance eastward towards the inhabited part of the city. The track of the Fort Dodge Railroad ran, at that point, nearly parallel with the defendant's track, and about 12 feet therefrom. The boys had stationed themselves near a hand car between the two tracks, and while playing or lounging there a train from the west passed on the Fort Dodge road, running at a high rate of speed, and so near to the boys that they became enveloped with smoke and cinders. The deceased seems to have become partially blinded by the smoke and cinders, and was probably somewhat confused. He commenced rubbing his eyes, and stepping backward towards the defendant's track, and finally stepped across the rail to near the middle of the track. Unluckily one of the defendant's trains was approaching from the west on the track, and while the deceased was standing between the rails it struck him and killed him. An ordinance of the city of Des Moines prohibited trains from running within the city limits at a speed greater than six miles an hour. The defendant's train appears to have been running about 25 miles an hour.

The defendant contends that the instructions held by the court to be erroneous, and on account of which a new trial was granted, were in fact not erroneous; and, moreover, that if they were the verdict could not properly have been otherwise than for the defendant, under the undisputed evidence, and so the plaintiff was not prejudiced.

It is undisputed that the deceased was a trespasser on the defendant's track, unless he was there by the license of the defendant. The plaintiff contends that he was there by such license. The defendant denies that he was there by license, and moreover it contends that if he were the defendant would not be liable for negligence unless it was guilty of willful or wanton negligence. The evidence tended to show that the track, at that point, was traveled to some extent by footmen, and that there had been such an amount of travel as to make a path. But we think it fails entirely to show any license on the part of the company. If the travel had been at a point where the defendant's employes were stationed, and it were shown that the footman occupied the track without their dissent, it may be that the company's assent should be implied. But the company was not bound to station any one at the point in question for the purpose of warning footmen off, nor can we see that the company did or omitted to do anything which should be construed into an assent that footmen should occupy the track. To justify a court or jury in finding that the general public had acquired a right to occupy the defendant's track, and that a duty had thereby become imposed upon it to run its trains with reference to their safety, certainly something more should be shown than is shown in this case. There is probably more or less walking upon railroad tracks everywhere, and in most places the companies are powerless to prevent it. The general rule that persons walking on a railroad track, or so near as to receive injury, are guilty of carelessness, is a healthy rule, and the practice of walking on them is not to be protected and encouraged by frittering the rule away.

The deceased, then, was a trespasser, at least in the sense that he was upon another's premises where he had no right to be; and, being a trespasser, he was guilty of contributory negligence, unless he was a person of such tender years that he should be presumed to have such lack of discretion as to relieve his act of the character of negligence. The plaintiff contends that he was of such tender years; that he should have been so presumed, or at least that the jury would have been justified in so finding. But we think otherwise. A boy 11 years of age knows, as well as an adult does, what a railroad is, and the use to which it is put, and the consequence to a person who should be struck by a passing train, and knows that he should not stop to play or lounge amid a net-work of tracks. It is true that a boy of that age cannot be presumed to have the judgment of an adult; but it does not require much judgment to keep from walking in a dangerous place, the dangers of which are fully understood. If the question was as to whether the deceased was guilty of contributory negligence in the mere act of stepping backward upon the defendant's track when the Fort Dodge train passed, the case would be different. The deceased evidently lost his presence of mind somewhat, and he might not have been guilty of negligence in what he did then, even though he did not govern himself with the prudence which might reasonably have been expected of an adult. But his negligence consisted in going, in the outset, and in remaining, where he incurred the danger of losing his presence of mind. We certainly cannot hold that a boy 11 years...