Mitchell v. Union Terminal R. Co.

• Decision Date: 19 January 1904
• Citation: 97 N.W. 1112,122 Iowa 237
• Parties: W. H. MITCHELL, Appellee, v. THE UNION TERMINAL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

97 N.W. 1112

122 Iowa 237

W. H. MITCHELL, Appellee, v. THE UNION TERMINAL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 19, 1904

Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.

ACTION at law to recover damages on account of personal injury. There was a verdict and judgment for plaintiff and defendant appeals.

Affirmed.

Charles A. Dickson for appellant.

F. E Gill for appellee.

OPINION

WEAVER, J.

The defendant owns a line of railway which occupies a part of Leech street, in Sioux City. Leech street runs east and west and is crossed at right angles by Chambers street. Approaching from the east in the direction of Chambers street, the track curves to the south, running near the curb line, and at a point several hundred feet west of the Chambers street crossing it enters an arched doorway into a large packing house. At a point about fifty feet west of Chambers street the track is at a varying distance of eleven to twenty feet from the curb in front of a building occupied as a poultry house. About three o'clock p. m. on December 15, 1900, the plaintiff, a driver in the employ of an express company, brought his team and wagon alongside and near to the curb in front of the poultry house for the purpose of obtaining and carrying away a quantity of empty crates which were piled upon the sidewalk. The work of loading and unloading express and freight wagons at this point was of frequent occurrence, and plaintiff had often performed the same service there. The railway track along this part of Leech street was a branch or spur constructed and used more particularly for the accommodation of the packing house above referred to. At the time of the accident the packing plant had been idle for a long time, but the building or yards seem to have been put to some use for storage purposes, requiring at least some movement of cars. Just prior to the time when plaintiff stopped his team in front of the poultry house, an engine, with several cars, backed down the track from the east to the west, passing under the arch into the packing-house premises. The pile of crates on the sidewalk stood so close to the street that plaintiff was able to reach and load them, in part, without getting off his wagon. Having performed the work so far as practicable in this manner, he got off the wagon, and, having looked to the west and found no train approaching, proceeded to place the remaining crates upon the load. While he was engaged in adjusting the crates at the rear end of the load, the engine and cars came out of the doorway of the packing house, and moved east, towards Chambers street. Their approach was not observed by plaintiff until his team, which was facing west, began to turn around, when he seized one or both of the lines and attempted to hold them. His efforts to check the horses were unavailing, and he was knocked down and run over by the wagon, receiving severe injury. He alleges--and there is evidence to sustain his claim in this respect--that defendant's employes in charge of the engine failed to ring the bell or give any signal or warning on approaching the street crossing, and that, had reasonable care been exercised to give such signal, he would not have been injured. It is conceded that plaintiff did not tie or fasten his team when he stepped behind the wagon, and, had he looked, he could have seen the train approaching him from the time it emerged from the door of the packing house. It is also conceded that at this time there was in force in Sioux City an ordinance providing that "no person shall leave any animal used as a beast of burden or to which any vehicle or other thing shall be attached on any avenue, street, alley or other place without being securely fastened or guarded so as to prevent its running away." Many of the matters to which we have referred concerning the alleged negligence of the defendant's trainmen, and concerning the acts and conduct of the plaintiff, are the subject of dispute in the record, but the testimony is such that a finding by the jury in accordance with this statement could not be said to be without substantial support. The jury having found for plaintiff in the sum of $ 700, we are asked, upon several grounds, to reverse the judgment entered upon said verdict.

I. It is said that the trial court erred in refusing to direct a verdict on defendant's motion because (1) of plaintiff's failure to look and listen for the approaching train; (2) of plaintiff's negligence in leaving his team unhitched, and his violation of the ordinance forbidding such acts; and (3) of his negligence in rushing into the street and attempting to seize the horses after they took fright, thereby voluntarily putting himself in a place of danger.

We are not prepared to hold, as a matter of law, that plaintiff was guilty of contributory negligence in either respect mentioned. He had the right to be in the street with his team, and to stop at the curb as he did for the purpose of loading the crates. He was, of course, bound to exercise reasonable care to look out for, and avoid injury from, passing trains; but, in the very nature of things, he could not be expected to keep a constant watch up and down the railway track. He had his work to do, and, of necessity, must give it some share of attention. According to his testimony, he did look for trains just before going behind his wagon. His errand there is not shown to have been unreasonable or unnecessary. It does not appear just how long he stayed there, but the circumstances would indicate a very brief period. He had the right, also, we think, to place some degree of reliance upon the presumption that the trainmen would do their duty, and sound the usual signal or warning of some kind in approaching the crossing near at hand, and before coming so closely upon him as to involve him in danger. It was for the jury, therefore, to find whether, in view of all the facts and circumstances shown in evidence, he acted with the prudence and caution of a reasonable man.

As to the next subdivision or ground of the motion to direct a verdict, we have to say that a driver who descends from his wagon for the purpose of putting on a load under the circumstances here shown, never leaving or abandoning the immediate charge and oversight of his team, is certainly not always or...