Oliver v. Iowa Cent. R. Co.

• Decision Date: 18 January 1904
• Parties: JOHN OLIVER v. IOWA CENTRAL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

97 N.W. 1072

122 Iowa 217

JOHN OLIVER v. IOWA CENTRAL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 18, 1904

Appeal from Monroe District Court.--HON. FRANK W. EICHELBERGER Judge.

ACTION to recover damages for a personal injury. At the time the injury was received the plaintiff was about seventy years of age, and, aside from being slightly deaf, was in the full possession of his mental and physical powers. He reached Oskaloosa over the defendant's road about seven o'clock in the morning on his way to Hedrick, to reach which place he had to change trains at Oskaloosa and wait until about half past eleven o'clock. Immediately west of the defendant's station house and mainline track in Oskaloosa were several yard tracks running, as did the main track, north and south, and extending over one of the principal thoroughfares of the city, known as "High Avenue." Soon after leaving the train which had brought him to the city, the plaintiff walked north to High avenue and then west thereon across all of the defendant's tracks. Shortly thereafter he started to return across the tracks, and when part way over he stopped, either between the rails of one track or so close to one of the rails thereof as to be in a position of danger, and there stood looking toward the south for a couple of minutes, as he testified, and while so standing and looking, one of the defendant's engines, backing down from the north, struck him and inflicted the injury complained of. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Reversed.

George W. Seevers and T. B. Perry for appellant.

Bolton, McCoy & Bolton, Bolton & Bolton and McCoy & McCoy for appellee.

OPINION

SHERWIN, J.

The principal assignment of error is based upon the following instruction given by the court: "If you find that the plaintiff was struck and injured at a point in High avenue, or within its limits where it is crossed by the railroad tracks, whilst he was using said highway in a proper manner for the purpose of crossing the tracks, plaintiff would not in such case be a trespasser. If such place was a much-frequented crossing used by many persons and teams in crossing and recrossing the tracks in a populous neighborhood, and near defendant's depot and yards, where it might reasonably be expected that persons would or might be crossing the tracks then the defendant was under the duty of exercising care to discover the possible danger to pedestrians and teams making use of the crossing. In such case a railroad company would be liable to any one injured by reason of its failure to use ordinary care under all the circumstances, and if, by the use of such ordinary care at such point, it might have discovered a person on the crossing, in a dangerous position, in time to have avoided the accident, and if it failed to use such ordinary care to discover the exposed situation of the person receiving the injury, it would be liable to damages to such person so injured, notwithstanding he might have been guilty of negligence in thus exposing himself in the first instance. Although the rule is that, even if the defendant is shown to have been guilty of negligence, the plaintiff cannot recover if he himself be shown to have been guilty of negligence contributing to his injury, yet this negligence on his part would not exonerate the defendant and prevent recovery by the plaintiff if it be shown that, by reason of the publicity of the crossing and the number of persons in and about and crossing over said crossing, the defendant's employes would or should, in the exercise of reasonable care, have had knowledge of such danger, and that they might in the exercise of reasonable care have discovered the plaintiff's danger in time to have avoided the accident, but failed to exercise such care, and thus failed to discover his exposed and dangerous situation in time to avoid the injury to him; and f you so find, and find that the defendant was negligent in not thus discovering the plaintiff, you should find for the plaintiff."

There was a conflict in the evidence as to whether the plaintiff was on High avenue when he was struck, but that was settled by the finding of the jury that he was. The plaintiff, then, was not a trespasser or a licensee, but was in the rightful use of a public street across which the defendant also had the right to run its engines and cars. The defendant's employes did not see the plaintiff until the moment he was struck, and there is no claim that they could then have stopped the engine in time to have avoided the accident. The engine was moving at the rate of about four miles an hour. There was testimony tending to show that no alarm was given of the movement of the engine across the avenue, and testimony from which the jury might have found that the plaintiff's negligence contributed to the accident. So that the questions we have to consider in this connection are of law only.

The instruction told the jury in substance that, no matter how negligent the plaintiff had been in exposing himself to the peril incident to standing on a railroad track, the defendant would nevertheless be liable if its employes were negligent in not discovering the plaintiff in time to have avoided the accident. There can be no doubt that greater precautions should be taken for the protection...