Richards v. Chi., St. P. & K. C. Ry. Co.
| Decision Date | 27 October 1890 |
| Citation | 47 N.W. 63,81 Iowa 426 |
| Court | Iowa Supreme Court |
| Parties | RICHARDS v. CHICAGO, ST. P. & K. C. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Chickasaw county; L. O. HATCH, Judge.
Action to recover damages for personal injuries alleged to have been wrongfully caused by defendant. After the evidence for plaintiff had been submitted, the court sustained a motion to instruct the jury to return a verdict for defendant. A verdict was accordingly returned, and judgment rendered in favor of defendant. The plaintiff appeals.Springer & Clary, for appellant.
Fouke & Lyon and Lusk & Bunn, for appellee.
Plaintiff received the injuries of which he complains in October, 1887, in the town of Elma. He was at that time 19 years of age. While walking near a track of defendant, he was struck by a caboose, and thrown violently to the ground in such a manner that one foot was thrown on a rail and crushed, making amputation of the injured limb below the knee necessary. Other injuries were also received. The accident occurred at a point which was generally used by the inhabitants of Elma as a crossing, but it was not in a street, nor other duly established public way. Plaintiff was not in the service of defendant, but claims that he was rightfully in the place where he was injured, and that his injuries were caused solely by carelessness and negligence on the part of defendant, in the manner in which the car was moved, in not providing a person to guard the tracks, in not giving proper warning of danger, and in moving the car at a high rate of speed.
1. A street of Elma, called “Busti Avenue,” extends from north to south, and is intersected on the west side by Main street. The business of the town is largely done on those streets. The main track of defendant crosses Main street from the south a few feet west of Busti avenue, and extends thence in a northerly direction, forming with the avenue an angle of less than 30 degrees. A track, known as the “lead track,” leaves the west side of the main track at some distance south of Main street, and extends thence northward, parallel to and about eight feet from the main track, until after it reaches the depot. Several short tracks leave the west side of the lead track north of Main street, and extend in a northwesterly direction, each with the lead track forming an acute angle. Four such tracks leave the lead track between Main street and the south end of the depot platform. There is no street, or other regularly established crossing, between Main street and the depot, but the inhabitants of Elma have habitually crossed the tracks in passing from the northern part of Busti avenue to the western part of Main street, at a point just south of the depot platform. Another route extended eastward on Main street to a point between the main and lead tracks, and thence northward between these tracks to the crossing at the south end of the platform already described. The duly-established way was along Main street and Busti avenue. The post-office was on the east side of the avenue, at a point north-east of the depot. On the day of the accident, plaintiff started from his house in the west part of the town to go to the post-office. He went eastward along Main street until he had crossed the lead track, and then turned, and walked northward between that and the main track. Just before he reached the lead track, an engine and caboose went south on that track, and were 15 or 20 paces south of him when he crossed the track. When he reached a point 40 or 50 paces north of Main street, an engine passed him going south on the main line, and drawing a stock train. Another engine was switching on a side track west of him. He walked northward between the tracks until near the south end of the depot platform, which is about 500 feet north of Main street. As he approached that point, his attention was attracted by a boy some distance in front of him, who was trying to warn him of danger by waving his hands; but the signals were not understood, and plaintiff was struck in the back, by the caboose at the place described, while walking east of but near to the lead track. It appears that the engine had drawn the caboose some distance south of Main street on the lead track, and had then backed on the same track, finally giving the caboose a “kick,” which propelled it northward until it reached plaintiff at a speed of 10 or 12 miles an hour. The plaintiff contends that he was in the right of way of defendant by invitation; that he looked southward twice, while walking between the tracks, without discovering any danger; that he had no reason to expect that the engine and caboose which he saw moving south would be moved north; and that it should not have been moved back as rapidly as it was, without some one in charge of it. The conduct on the part of defendant, which plaintiff claims should be construed as an invitation to the public to use its right of way, or at least as permission to do so, was that it did not forbid the public from crossing the tracks at the south end of the depot platform, nor from walking along its tracks; and it frequently opened the trains on the different tracks so that pedestrians could cross them at the place in question. It may be conceded that there was evidence which tended to show that defendant gave to the inhabitants of Elma license to cross its tracks south of the depot platform, and even that it invited them to do so by separating its cars for the purpose of removing obstructions to travel across the tracks; but there is no evidence to show that it invited people to walk along its tracks. The fact that it did not forbid their doing so cannot be given the force of an invitation. It may be there was evidence of such habitual use of the tracks by the public, which use was known to the employes of defen...
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