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

• Decision Date: 23 October 1902
• Citation: 91 N.W. 933,117 Iowa 667
• Court: Iowa Supreme Court
• Parties: PURCELL v. CHICAGO & N. W. RY. CO.

117 Iowa 667

91 N.W. 933

PURCELL

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

Supreme Court of Iowa.

Oct. 23, 1902.

Appeal from district court, Harrison county; A. B. Thornall, Judge.

Action for damages, which resulted in judgment against defendant. It appeals. Affirmed.Hubbard, Dawley & Wheeler, for appellant.

S. H. Cochran, for appellee.

LADD, C. J.

The facts are substantially as related in the opinion on the former appeal, though the fireman did not testify, and the engineer was examined at greater length. See Purcell v. Railway Co., 109 Iowa, 628, 80 N. W. 682, 77 Am. St. Rep. 557. There was nothing to show that the fireman was looking ahead previous to the collision, or that he had seen the deceased before being struck, and the special finding that he knew “Hunt was on the bridge in time to give warning and have the engine stopped before injuring him” was without support in the evidence. As the finding was not essential to a verdict for plaintiff, however, a new trial will not be awarded on this ground alone. Phœnix v. Lamb, 29 Iowa, 352. The jury also found that the engineer saw Hunt on the bridge, or knew he was there in time to avoid injuring him. Appellant insists that this finding, also, is contrary to the evidence. The only testimony bearing thereon is that of the engineer and Athy. The bridge was on trestlework, level with the ground, and without guards at the sides. The train was coming from the east at a speed, according to the engineer, of 40 miles per hour. When a half or three-fourths of a mile from the bridge, he saw deceased approaching from the west, in the center of the track, and watched him till he stepped to the south side. His attention was then taken by the semaphore at Missouri Valley, about one-half mile west of the west end of the bridge, and at the side of the track. When on the south side of the track the engineer's view would be cut off by the engine 60 or 70 feet before reaching Hunt. He farther testified: “All the time I saw him, until the front end of the engine cut my view off from him, he was walking toward me on the south side of the track. I think he had not arrived at the bridge. He might have been very close. I did not begin to look at the semaphore until I saw this man clear--step off from--the track. Q. If this man was on the bridge or trestle, he must have been between you and the semaphore, wasn't he, if he was there, whether you saw him or not? A. He certainly was. The trestle can't be seen until you get right onto it, simply because there are no marks,--nothing there; simply level ground.” The road was straight for a mile east of the bridge, and he could see to the west end till he reached it,--that is, where the bridge was,--though he could not distinguish it. He further testified that he was near the east end when Hunt stepped aside. “I could see clear on the track, and clear to the west end of the bridge, all the time. * * * Yes, sir; I could see the bridge. I could see the space where the bridge was until the engine went onto it. * * * Q. Now, if he had been between you and the semaphore, as you looked at the semaphore wouldn't you necessarily have seen him on the bridge or trestle? A. But I had my eyes on him first, and kept my eyes on him till I was sure he was out of the way. * * * I had not commenced to look at the semaphore until I went onto the bridge.” From this the jury might have concluded that the engineer saw deceased on the track at least a half mile before reaching the bridge, that he watched him until...