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

• Decision Date: 28 October 1899
• Citation: 109 Iowa 628,80 N.W. 682
• Parties: PURCELL v. CHICAGO & N. W. RY. CO.
• Court: Iowa Supreme Court

109 Iowa 628

80 N.W. 682

PURCELL

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

Supreme Court of Iowa.

Oct. 28, 1899.

Appeal from district court, Harrison county; George W. Wakefield, Judge.

On the 21st day of March, 1895, plaintiff's decedent was killed by one of defendant's trains, and this action is to recover the damage sustained by the estate. The verdict was, by direction of the court, for the defendant, and the plaintiff appealed. Reversed.S. H. Cochran, for appellant.

Hubbard, Dawley & Wheeler, for appellee.

LADD, J.

The deceased, Z. W. Hunt, on the day he was killed, was walking on the defendant's track, towards the east, and when on a bridge some eight feet high was struck by a fast passenger train, known as the “Overland Limited,” going west. It appears without dispute that when he was first seen by the engineer the train was a mile away, the track being straight for that distance. At that time he was walking on the track west of the bridge, but, before reaching it, stepped to the south side of the track. The engineer's attention from then on was taken by the semaphore at Missouri Valley, and he saw no more of him. But the fireman testified: “When I first saw Mr. Hunt, he was on the south side of the track, about eight or ten feet of the trestle. When I saw him he was walking on the left side towards the train, and he got up on the bridge, and kept walking on the bridge until we hit him. He leaned over the bridge with his face towards us. When I first saw Mr. Hunt, I think the engine was three or four car lengths from him.” Both the engineer and fireman estimate the speed of the train at 40 or more miles an hour. The bridge was 78 feet in length. One Athy testified that he was standing at a farm house, about a half mile distant; saw the accident; and that Hunt was three-fourths of the way across the bridge, within 15 or 20 feet of the east end, when struck. This was the only witness fixing the point on the bridge where the deceased was standing at the time. That the defendant owed the deceased no active duty before he was seen on the bridge must be conceded. It could not be reasonably anticipated that he would go on the bridge in front of an approaching train, until he did so, or indicated in some way such an intention. See Thomas v. Railway Co., 93 Iowa, 248, 61 N. W. 967;Burg v. Railway Co., 90 Iowa, 106, 57 N. W. 680. But, if Athy is to be believed, he must have walked 60 feet on the bridge, towards the train, after the fireman had observed him in a place of peril. Conceding the train to have been moving at the rate mentioned by the employés,--though Athy put the speed much lower,--the engine was between 600 and 800 feet from the deceased when the fireman first saw him go on the bridge. If moving but 30 miles an hour, as stated by Athy, it could not have been so far off. True, the fireman estimates the distance at three or four car lengths. But he saw him until the time he was struck, and the jury might have found that to be at the point testified to by Athy. The question, then, arises, could the train have been stopped in time to have avoided the accident? A witness, who had at one time been an engineer, testified that such a train as the one in question might be stopped, when moving at the speed of 40 miles an hour, within 100 yards. This evidence was undisputed. He also gave...