Reifsnyder v. Chi., M. & St. P. Ry. Co.

• Decision Date: 30 January 1894
• Citation: 57 N.W. 692,90 Iowa 76
• Court: Iowa Supreme Court
• Parties: REIFSNYDER v. CHICAGO, M. & ST. P. RY. CO.

90 Iowa 76

57 N.W. 692

REIFSNYDER

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

Supreme Court of Iowa.

Jan. 30, 1894.

Appeal from district court, Wapello county; H. C. Traverse, Judge.

Action to recover for damages to a team, wagon, and harness. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.McElroy & Roberts, for appellant.

W. H. C. Jaques, for appellee.

KINNE, J.

1. The testimony shows that the ground where the accident happened is bounded on the east by Jefferson street, on the south by the Des Moines river, and on the west by Greene street. A plat attached to the abstract shows that Greene street is on the east, and Jefferson street on the west; but this is a mistake, as appears from the testimony of all of the witnesses. The action is brought to recover damages to the team, wagon, and harness of plaintiff. The following facts are either admitted in the pleadings or established by the evidence: The accident occurred on the switch and depot grounds of defendant, in the city of Ottumwa, and on the defendant's track. These grounds lie between the depot grounds of the Chicago, Burlington & Quincy Railway Company and the Des Moines river, and access is had to them by passing down either Greene or Jefferson street. These streets run parallel with each other, and are about 400 feet apart, and cross the grounds of both railway companies at right angles. At the time of the accident, plaintiff's team was in charge of a young man 19 years old. This man and plaintiff's son had during the day been hauling bones in a wagon, and loading them into a car belonging to the Chicago, Burlington & Quincy Railway Company, standing upon its transfer track, at a point from 40 to 198 feet west of Jefferson street. The men had been loading from the south side of the car, next to the depot and switch grounds of the defendant. The space where the unloading was going on was not wide enough to permit the team to turn around. There was a clear space about 40 feet wide on the north side of the car, which extended from Greene to Jefferson street. The car could have been loaded from that side, but it seems that the ground there was muddy, and filled in with fresh earth. The evidence is not clear as to the direction the man had come from into this narrow space with prior loads,--whether from Greene or Jefferson street. Defendant's switches were east and west of the place where the bones were being loaded into the car. It appears, also, that defendant did all of its own switching for its city business, and also switching for the Wabash Railway Company, on these grounds. Before the man drove his team away from the car where he was loading bones, defendant's employes had been engaged in switching cars; and, as near as can be gathered from the evidence, this switching had been going on west of Greene street. After the man had unloaded the bones, he started his team west, along the south side of the transfer track, through a passageway too narrow to turn around in, yet wide enough to drive through to Greene street. This passageway was frequently used by buses and drays to reach Greene street. As the man was driving along this narrow way, he met a car coming down the main track of defendant; and when it came within 10 or 20 feet of his team the horses took fright, and as the transfer track on the north side was filled with cars, so that they could not go across it, they turned south, across defendant's track, and in front of the moving car, and were caught and killed. There is no positive evidence that the man in charge of this team had seen any switching going on there the day of the accident. Indeed, it appears that the switching was done only from 3:15 to 4:30 o'clock P. M. It also appears to be doubtful if the man in charge of the team could have seen much of the switching, as nearly all of it was west of Greene street. The car that killed the horses had been kicked back towards the team. As to whether or not an employe of defendant was on the car, and applied the brake before the horses were struck, is a matter upon which the testimony is conflicting.

2. It is said that plaintiff's driver was guilty of negligence which should defeat a recovery. The jury specially found that the driver did not know, and by the exercise of ordinary care could not have known, that switching was being done in defendant's yards, where the accident occurred, at the time of the accident; that the place was not a dangerous place in which to drive teams; and that the driver did not know, and could not have known by the exercise of ordinary care, that it was dangerous to attempt to drive where he did; and that he was...