Powers v. Iowa Central Railway Co.
| Decision Date | 25 June 1912 |
| Parties | G. E. POWERS v. IOWA CENTRAL RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Hardin District Court.--HON. C. G. LEE, Judge.
SUIT to recover damages occasioned by one of the defendant's trains. Verdict and judgment for plaintiff. Defendant appeals.
Reversed.
Geo. W Seevers and W. H. Bremner and E. P. Andrews, for appellant.
Lundy Wood & Baskerville, for appellee.
The defendant's railroad track intersects the main street of the town of Liscomb at about right angles; its depot being on the north side of the street and west of its line of railway where they intersect. The plaintiff was driving west on Main street, and was struck on this crossing by a freight train coming from the south. One of the grounds of negligence alleged was that defendant was running its train at a rate of speed prohibited by an ordinance of the town, and at an unreasonable and dangerous rate of speed. The ordinance in question made it unlawful to run a train within the town at a greater rate of speed than eight miles per hour.
The defendant objected to the testimony of witnesses as to the speed of the train immediately before it struck the plaintiff, and now insists that such testimony was incompetent, because sufficient foundation therefor had not been laid. The witnesses examined on this question showed that they were men of average intelligence and observation, having knowledge of time and distance, and that they saw the train at the time in question. We think their testimony was competent. Ressler v. Railway Co., 152 Iowa 449; Omaha St. Ry. Co. v. Larson, 70 Neb. 591 (97 N.W. 824); 8 Century Dig. 492.
J. B. Sweet was clerk of the town of Liscomb when the ordinance regulating the speed of trains was passed, and he testified for the plaintiff that he was present at the meeting of the council when the ordinance was finally passed. He was then asked whether the record book showed the proceedings of the town council of the incorporated town of Liscomb with reference to the passing of Ordinance No. 20 (). The defendant's objection, because the book itself was the best evidence of what it contains, was overruled. Of this complaint is made. This testimony was competent for purposes of identification. But, even if defendant's theory were correct, the ruling was not prejudicial, because the book itself, so far as material, was in evidence.
Objection was also made to Sweet's testimony that the ordinance was signed by the mayor during his term of office in 1903, and to his testimony that the ordinance was published by posting notices. Objection was also made to the ordinance itself. All of this testimony, and the ordinance itself, was in our judgment competent. It was clearly competent to show by parol that the ordinance was properly signed by the mayor, and that the ordinance was published in accordance with the requirements of the statute. City of Des Moines v. Casady, 21 Iowa 570 at 572; Larkin v. Railway Co., 85 Iowa 492 at 502, and Larkin v. Railway, 91 Iowa 654 at 655; Bayard v. Baker, 76 Iowa 220, 40 N.W. 818.
The appellant moved for a directed verdict on the ground, among others, that it conclusively appeared that plaintiff was guilty of contributory negligence, and it is now insisted that the motion should have been sustained. The plaintiff had lived in the neighborhood of Liscomb for many years. He was thoroughly familiar with the crossing in question, and knew that a freight train was due in Liscomb from the south at about 8 o'clock in the morning, the time that he was struck. From a point eight or ten rods east of the crossing, there was an unobstructed view of the defendant's track south for, at least, a half a mile. The plaintiff says that he was approaching the crossing at a trot, and that at a point eight or ten rods east thereof he glanced down the track, but saw no train. He further testified that his horses continued to trot toward the crossing, and that, when about two or three rods east thereof, the team that he was leading became frightened at something, and started north around the end of the wagon that he was in; that at that time he attempted to again look south for a train, but was unable to do so, because of the action of his team. He further says that, when the team he was leading started up, the other team also started, and that he had difficulty in controlling both; that the team that he was driving carried him onto the track just ahead of the defendant's engine; and that he then, for the first time knew of the presence of the train. During all of the time that plaintiff was approaching this crossing, he sat on a seat with his back to the south, the direction from which the train in...
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