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

• Decision Date: 06 February 1890
• Citation: 79 Iowa 389,44 N.W. 686
• Court: Iowa Supreme Court
• Parties: PENCE v. CHICAGO, R. I. & P. RY. CO.

79 Iowa 389

44 N.W. 686

PENCE

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

Supreme Court of Iowa.

Feb. 6, 1890.

Appeal from district court, Polk county; MARCUS KAVANAUGH, Jr., Judge.

Action to recover damages resulting from personal injuries for which defendant is alleged to be responsible. There was a trial by jury, and a verdict for plaintiff for the sum of $24,000. Defendant filed a motion for a new trial, and the district court ordered that unless plaintiff remitted of the verdict the sum of $9,000, and accepted a judgment for $15,000, the motion for a new trial should be sustained. The plaintiff thereupon elected to remit $9,000, the motion was overruled, and a judgment was rendered in favor of plaintiff for $15,000 and costs. The defendant appeals.T. S. Wright and Cummins & Wright, for appellant.

Parsons & Perry, for appellee.

ROBINSON, J.

The injuries in question were received on the 30th day of October, 1878. At that time, defendant was engaged in operating two lines of railway, which extended eastward for some distance from Des Moines. One of them was known as the Chicago, Rock Island & Pacific Railway, and the other as the Keokuk & Des Moines Railroad. The first was commonly designated as the “Rock Island,” and the other as the “Keokuk” road. The latter was south of, and for several miles eastward of, Des Moines, substantially parallel to the former. A highway known as the “Rising Sun Road” also led eastward from Des Moines,near the tracks of said railways, until it crossed them, at an acute angle, a short distance east of a building known as the “Greever House.” That house stood between the Keokuk track and the highway south of it, about 480 feet west of the point where the latter crossed the former. It was about 20 by 30 feet in size, and stood 54 feet north of the highway, and its north-east corner was 39 feet from the south rail of the Keokuk track, at its nearest point. At the time in question, there were numerous trees, some out-buildings, a fence, and hedge between the north line of the house produced eastward and the Keokuk track, in the vicinity of the house. A short distance west of the Greever house the two railway tracks curved slightly, and, before reaching the line of that house, begin to trend southward, and continue in that direction until after the line of the highway was crossed. For more than a quarter of a mile west of the crossings, the railway tracks are but 80 feet apart. West of the Greever house, and between the Keokuk track and the highway, there were buildings and other objects, which, in places, obstructed a view of the railway tracks from the south.

Late in the afternoon of the day named, plaintiff and one Crews left Des Moines in a common farm-wagon, drawn by a mule team, which was driven by Crews. It was nearly or quite dark when they approached the Greever crossing by the Rising Sun road. They stopped before reaching the first track and listened and looked for trains, then drove over the Keokuk track. Just after they crossed, a train passed over it from Des Moines, and another was seen approaching from the same direction on the Rock Island track. It is claimed that their team then became frightened, and could not be controlled; that it ran eastward along the highway, and when near the east crossing was struck by the Rock Island train, and that the injuries of which plaintiff complains were the result of the collision.

Plaintiff claims that the defendant's roads were negligently located and constructed west of the Greever crossing, and that they were hidden from view in places by obstructions of various kinds; that ordinary prudence required them to have a flagman at the crossing, but that it negligently failed to do so; that the crossings were improperly located and constructed; that they were not of sufficient width; that ditches were dug at the sides of the Rock Island crossing, leaving a strip less than 12 feet in width for the crossing. Negligence in locating and constructing cattle-guards and fences, and in permitting obstructions to exist on its right of way, and near to the tracks, which prevented the seeing of its trains from a point near the crossing, and in failing to repair the crossings, is also charged. It is further claimed that the trains in question were run at a high and improper rate of speed; that proper signals were not given; that a whistle was blown at an improper time, which frightened the team Crews was driving; that the employes of defendant on the Rock Island train saw and knew the danger to which plaintiff was exposed, but made no effort to avoid the collision; that, on the contrary, the engineer of that train wrongfully increased the speed of the train, and sounded the whistle; and that the injuries of plaintiff were the consequence of the alleged negligent and wrongful acts on the part of defendant. The answer admits that defendant operated the two roads at the time charged, and denies all grounds of liability alleged.

This case has been in this court before. For the opinion on the former appeal, see 63 Iowa, 747, 19 N. W. Rep. 785. We have deemed it important to set out the facts involved in this appeal quite fully, for the reason that the case, as now presented to us, is in several particulars materially different from that formerly considered.

1. Counsel for appellant discuss at length the evidence, and insist that it shows that plaintiff was guilty of contributory negligence, which resulted in the injuries complained of, and that defendant was free from all negligence. The plaintiff claims, and there is evidence which tends to show, the following facts: Plaintiff and Crews approached the Greever crossings on the Rising Sun road, going east, at about dark of the day named. Before reaching the first crossing, they stopped at least twice to look and listen for approaching trains. The last time they so stopped, they were within from 50 to 60 feet of the west crossing. They looked along the tracks towards Greever's house, but neither saw nor heard anything of approaching trains. The team was then started at a slow trot across the track. When it had about reached it, plaintiff saw a flash from the head-light of an approaching locomotive, and, before the wagon had cleared the track more than a few feet, a passenger train went by at a high rate of speed. When the locomotive was about at the crossing, it whistled, thereby frightening the mules. Crews was driving, and they commenced to run towards the east crossing. The distance between the two crossings was 216 feet. When the mules commenced to run, a train was approaching the east crossing, on the north track, from the west. The engineer in charge of the engine of that train saw the team, and thought it was trying to cross the track ahead of the train. He saw that the team was scared and unmanageable. When he saw them he was about 300 feet from the crossing, and the team was about midway between the crossings, or about 110 feet from the east crossing, towards which it was going at a rapid pace. He says: “I saw this, and that if I undertook to stop my train there was no possibility, in any way, of saving the lives of the men, whoever they were, on that wagon, and consequently dropped my engine right down, and gave her all the steam I could, so as to clear that crossing before they could get there, or head them off; but they got down to the open place next to the cattle-guard, and the mule on the near side got there just in time to strike the bumper of my engine. * * * The bumper * * * is the timber that runs out on the cow-catcher.” One mule was killed, the wagon was overturned, and plaintiff was thrown out, and severely injured. Before the east crossing was reached, plaintiff had attempted to aid Crews in controlling the team, but without avail. No whistle was blown, nor bell rung, until after the first track had been crossed.

Appellant insists that the preponderance of the evidence is with it on most of the material issues; that it is shown by mathematical demonstrations that an engine on the Keokuk track could have been seen from the highway, at the point where plaintiff claims to have stopped last before making the first crossing, for a distance of at least 1,300 feet westward, and that it was not possible for the train, even if it was running at the speed claimed by appellee, to have reached the crossing as...