Payne v. Chi. & N. W. Ry. Co.

• Decision Date: 08 April 1899
• Citation: 108 Iowa 188,78 N.W. 813
• Court: Iowa Supreme Court
• Parties: PAYNE v. CHICAGO & N. W. RY. CO.

108 Iowa 188

78 N.W. 813

PAYNE

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

April 8, 1899.

Appeal from district court, Boone county; S. M. Weaver, Judge.

Plaintiff prosecutes this action to recover damages for personal injuries, and for injury to his property, caused, as is alleged, by the negligence of the defendant, and without fault or negligence on the part of the plaintiff. The defendant answered, denying generally, and, upon trial had, verdict and judgment for $4,000 were rendered in favor of the plaintiff. Defendant appeals. Reversed.Hubbard, Dawley & Wheeler, for appellant.

Whitaker & Dale and Edmund Nichols, for appellee.

GIVEN, J.

1. Appellant insists in argument on a reversal on four grounds, namely: That the evidence fails to show that the defendant was negligent in any of the respects charged; that the evidence does show that the plaintiff was guilty of negligence contributing to his injury; that counsel for the plaintiff was guilty of misconduct in the argument to the jury prejudicial to the defendant;and that the court erred in overruling the defendant's motion for a continuance.

As a disposition of the first two propositions involves a consideration of the evidence, we will state the substance and effect thereof, so far as material to these contentions: On the 2d day of December, 1895, the plaintiff, then residing some miles east of Boone, started west, on an east and west public highway, for that city, with a two-horse team and an empty farm wagon, with a double top box thereon, and a spring seat on top of the box. The day was clear, cold, and there was a strong wind from the northwest. Plaintiff was “warmly covered up,” had a woolen scarf around his head and ears, and a cloth cap on his head over the scarf, with the roll or band turned over his ears. Thus wrapped up, and seated in the spring seat, he drove along towards the crossing at a trot, having full control of his team. The general direction of the defendant's track for about 2 3/4 miles east of Boone is from southeast to northwest, and the highway upon which plaintiff was driving is due east and west. At a point about 2 miles east of Boone there is a north and south highway crossing the east and west highway 628 feet east of where that highway crosses defendant's track. The north and south highway crosses the track a short distance south of where it crosses the east and west highway, and 660 feet southeast of where the east and west highway crosses the track. It will be observed that there were two railroad and highway crossings, only 660 feet apart. They are known as the “Twin Crossings.” The east and west highway is north of the track until the crossing is reached, and from there west it is south of the track. It will be seen that the crossing of the east and west highway and the railroad track is at a sharp angle. The track, from a point about three-quarters of a mile east of the Twin Crossings, to Boone, is straight, with a slight down grade to the west. East of that point it curves out of view from one at or near the crossing. Immediately east of the crossing of the north and south highway and the railroad, the track passes through a slight cut, on the north side of which, and forming a part of the right of way fence, is a close board snow fence, 360 feet long and 8 feet high. There were whistling posts to the east for each of these railroad crossings, at the required distances. Some months before December 2, 1895, the defendant had deposited a quantity of coal slack on its right of way west of the east and west highway. Some time previous to this accident this slack had ignited, and at times, especially when a high wind prevailed, threw off smoke that somewhat obscured the view, and caused horses to shy, in passing the crossing. The defendant had refitted an engine in its shops in Boone to be used in drawing a fast mail train, a service in which more than ordinary speed was required, and in which it was necessary that the engine should “run cool”; that is, that the journals should not become heated so as to compel delay. In the forenoon of December 2, 1895, this engine, without any cars attached, was taken out by N. S. Tedrow, engineer, and A. L. Fenn, fireman, accompanied by F. G. Benjamine, road foreman of engines, and E. J. Taylor, foreman of the shops, for the purpose of testing its fitness for the fast-mail service. The engine was run east from Boone to Ames, and then west to Boone. When running west, at a speed of from 45 to 60 miles per hour, the engine struck the wagon in which the plaintiff was seated, when on said crossing of the east and west highway. By the collision the plaintiff received serious and painful injuries upon his person, the horses were killed, and the wagon so broken as to be of little, if any, value. The plaintiff was at the time familiar with that crossing, having crossed it frequently and recently, and with the team he was then driving. He knew of the presence of the snow fence, the burning slack, and was familiar with the time of the passing of scheduled trains, and that no train was scheduled to pass at the time he went upon the crossing.

2. The negligence charged against the defendant may be summed up as follows: That for a long time prior to the accident the defendant “had carelessly and negligently constructed cattle guards, fences, and snow barriers along and upon its right of way, and had dumped at said crossing a large quantity of slack coal, allowing the same to become ignited, burn, and smoke, all of which obscured the view of defendant company's track and right of way to persons going in the direction traveled by said plaintiff at said time, and before reaching said crossing”; that said engine “was running, at the time plaintiff was struck and injured, at an extraordinary, unusual, and dangerous rate of speed, and the employés of said company failed and neglected to make the usual, necessary, and customary alarms and warnings of its approach towards said crossing, either by ringing the bell or blowing the whistle, until it arrived so near the plaintiff that he could neither cross said track nor back off of the same in time to avoid said engine,--in all of which plaintiff alleges said company was negligent, careless, and failed to use proper and necessary care.” There is no evidence whatever tending to show that the defendant “had carelessly and negligently constructed cattle guards, fences, and snow barriers along and upon its right of way.” So far as appears, these structures were not only properly constructed, but were also properly located. While there is no evidence to support this charge of negligence, the fact of the presence of these structures is proper to be considered in determining whether the defendant was negligent in other respects charged. As to the burning slack, it is said there is no evidence that the defendant deposited it where it was, but, whether or not it did so, it certainly permitted the slack to remain. We think it may be inferred from the fact that the slack was upon the right of way that the defendant put it there. Now, while it may be that depositing slack near a highway crossing, and permitting it to burn and throw off smoke, so as to obscure a view of the crossing and of approaching trains, might be negligence, we find no evidence whatever that the plaintiff's view was thus obstructed. He says he believes that he remembers that the slack was burning and smoking that morning. He says: “I cannot recollect whether I saw any smoke that morning of the accident at the crossing or not.” He nowhere says that his view was obstructed by the smoke, and the evidence of others, there at the time of the accident, or immediately after, leaves it beyond doubt that the smoke was not even remotely the cause of the accident. Plaintiff was familiar with the crossing, the presence of the burning slack, and had recently driven this same team over that crossing, and testified that he had the team under control at the time he approached the...