Reed v. Chi., St. P., M. &. O. Ry. Co.

• Decision Date: 10 March 1888
• Citation: 74 Iowa 188,37 N.W. 149
• Court: Iowa Supreme Court
• Parties: REED v. CHICAGO, ST. P., M. &. O. RY. CO.

74 Iowa 188

37 N.W. 149

REED

v.CHICAGO, ST. P., M. &. O. RY. CO.

Supreme Court of Iowa.

March 10, 1888.

Appeal from district court, Woodbury county; GEORGE W. WAKEFIELD, Judge.

This is an action by David M. Reed against the Chicago, St. Paul, Minneapolis & Omaha Railway Company to recover damages for a personal injury which the plaintiff sustained by a collision between a train of cars of appellant and a wagon of the plaintiff at the crossing of Dace and Howard streets, in Sioux City. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.J. H. & C. M. Swan, for appellants.

Hubbard, Taylor & Spaulding, for appellee.

ROTHROCK, J.

1. The plaintiff resides some 10 miles from Sioux City. On the 5th day of September, 1884, he went from his home to said city alone in a lumber wagon, and after transacting his business he started for his home, leaving the city by way of Dace street. The defendant's railroad track and a side track are laid upon Howard street, which crosses Dace street at right angles. In attempting to cross Howard street the wagon of plaintiff, in which he was seated, was struck by a switch-engine, and the plaintiff was thrown from the wagon and very seriously injured. He grounds his action to recover upon three alleged acts of negligence upon the part of the defendant: First, because the train-men operating the engine failed to give proper signals in approaching the crossing; second, in so obstructing its track as to shut off the sound and sight of an approaching engine; and, third, in failing to place a fiag-man at the crossing. The defendant denied the averments of negligence, and alleged that the plaintiff was justly chargeable with negligence which contributed to cause the injury of which he complains.

The first question which we think should be determined is that of the alleged failure to give any signal of the approach of the engine. It appears that there is a city ordinance which prohibits the blowing of locomotive whistles within the city. But the plaintiff claims that the engine approached the crossing and collided with his wagon without the ringing of the bell upon the engine. If this be true, there can be no question that it was negligence for which the defendant would be liable, unless exonerated from liability by reason of some negligence of the plaintiff. By chapter 104 of the Laws of 1884, it is required that the bell on a locomotive engine shall be rung at the approach of a highway crossing, and it shall be kept ringing continuously until the crossing is passed, and that the company shall be liable for all damages which may be sustained by any person by reason of a neglect to do so. It is a disputed question in the case whether the bell was rung at the approach to the crossing. The plaintiff testified positively that it was not; that the engine approached silently; and that if the bell had been rung, he could have heard it. Several other witnesses who were in the immediate vicinity testified that they did not hear the bell. Now, it is true this is negative testimony, for the bell might have sounded and the persons in the vicinity have failed to hear it, or, by reason of being accustomed to the passing of trains, did not notice it. But some of these witnesses heard the crash of the collision, and one at least had his attention directed to the plaintiff's danger, and did not hear the bell. We think this evidence is not to be discarded in considering this question. Another circumstance related by plaintiff is entitled to consideration. He stated that his team would not have gone on the crossing if the bell had been ringing. He knew the instincts and habits of his horses, whether liable to fright at the ringing of a bell upon an engine. Opposed to this evidence the engineer and fireman and another employe of the defendant who was on top of one of the cars attached to the engine testified positively that the bell was rung as the crossing was approached. In this state of the evidence, it was a fair question for the jury to determine. It is not the province of this court to say that the bell was rung.

2. We come now to the question of the alleged negligence of the defendant in blocking up and obstructing the view of its track at the crossing. As has been said, there are two railroad tracks in Howard street. The main track is a line connecting the yards of the defendant with its transfer boat across the Missouri river. The tracks at the crossing of Dace street are 12 feet apart from center to center. As the plaintiff approached the crossing, the first track was the side track. A line of box cars were stored on this track along Howard street for a considerable distance. There was an opening in this line of cars to permit travel to pass along Dace street. The ground at the crossing is practically level; the railroad tracks being laid upon the surface. This opening in the line of cars was not to exceed 35 feet wide. There was an absolute and impassable obstruction of more than half the width of Dace street, so that foot travel was compelled to go off the sidewalk and round the end of a car on one side of the street. The line of cars had been left in this position for several days, and during this time the defendant was using its main track from the yards to the transfer. It is claimed that there was no showing that the opening was not sufficiently wide to properly accommodate the travel on Dace street, and that for aught that appears the defendant had the right to store its cars on Howard street. We think the bare statement of the manner in which Dace street was obstructed is a sufficient answer to this position. Whatever the abstract right may be,--that is, whether the defendant was liable to prosecution for obstructing Dace street,--it was nevertheless a plain violation of its duty to the public to so use the street. If the whole width of the street was not required upon which to drive vehicles, it was necessary that it should be left open so that travelers approaching the crossing would have an unobstructed view of at least the full width of the street.

The plaintiff, in his testimony as a witness upon the trial, gave...