Sala v. Chi., R. I. & P. Ry. Co.

• Citation: 52 N.W. 664,85 Iowa 678
• Parties: SALA v. CHICAGO, R. I. & P. RY. CO.
• Decision Date: 27 May 1892
• Court: Iowa Supreme Court

85 Iowa 678

52 N.W. 664

SALA

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

May 27, 1892.

Appeal from district court, Muscatine county; C. M. WATERMAN, Judge.

Action to recover damages for personal injuries sustained by plaintiff. After she had submitted her evidence, the jury, by order of the court, returned a verdict in favor of defendant, and judgment was rendered thereon for costs. The plaintiff appeals.Jayne & Hoffman, for appellant.

J. Carskaddan and Thos. F. Wright, for appellee.

ROBINSON, C. J.

On the 15th day of August, 1889, the defendant was operating a railway in the city of Muscatine. Its track, extending from the northeast in a southwesterly direction, crossed Second street, which extends from north to south, on a grade about four feet higher than the general level of the street in that vicinity. Twenty-four feet north of the main track there was a side track on a level four feet lower than that of the main track. On the west side of the street was a sidewalk, near that was a street railway track, and east of that was the portion of the street used by wagons. South of the main track of defendant were a number of lumber piles, of which the nearest was 50 feet from the track, a telephone pole, and some trees. North of the side track were lumber piles, warehouses, and factories, and near the crossing was a flagman's station and building. The view of the railway east of the crossing was somewhat obstructed by the objects named, but at a point on the sidewalk 105 feet south of the main track a person could see it for a distance of 650 feet, and from a point 50 feet south it could be seen for a distance of 1,200 feet. At half past 5 o'clock in the morning of the day specified, the plaintiff left her home near the street railway to participate in a firemen's excursion to Moline. Before she reached the street railway a car passed, but she waited for a Miss Simmons, who was a short distance away, to join her, and made no effort at that time to stop the car. When she was joined by Miss Simmons a signal to stop the car, which was then distant about one block, was given. In response to the signal the car was stopped south of the main track, and the driver called to plaintiff and her companion to hurry; but, seeing a freight train approaching from the east, he drove to the north side of the track, and there stopped. The plaintiff and Miss Simmons walked rapidly, and, as they attempted to cross the track of defendant, were struck by the engine. Miss Simmons was killed, and plaintiff received serious injuries, some of which are permanent. She asks to recover damages for those injuries.

1. The train in question approached the crossing at a speed of from 20 to 25 miles an hour, without the ringing of a bell. Ordinances of the city of Muscatine forbade the running of trains within the city limits at a higher rate of speed than 6 miles an hour, and required that when a locomotive passed through the city its bell should be constantly sounded. The defendant was also required to have a flagman at the crossing in question. The evidence submitted would have authorized the jury to find that defendant was negligent in operating its train at too high a rate of speed, and in permitting it to approach the crossing without giving proper warning. But it is insisted by defendant that the negligence of plaintiff contributed to the accident, and the district court, in charging the jury to return a verdict for defendant, acted upon that theory. It is clear that had plaintiff used reasonable diligence to ascertain if a train was approaching, or had exercised but slight care to ascertain the fact, the danger would have been avoided. It is true she testifies that “just as we got past the lumber piles I looked both up and down the track, and the last I know I was down; I didn't know what struck me at the time;” and also that she looked more than once; but the evidence shows conclusively that she could not have looked to the eastward with any degree of attention. Conceding the claim made in her behalf that the side track was usually full of cars, and may have been at the time in question, we think plaintiff could not have mistaken a locomotive, and freight cars attached, moving at the rate of 20 or more miles an hour, for stationary cars standing on a track 4 feet lower, and partially hidden from view by the embankment on which the main track was built. When plaintiff was 35 feet from the crossing she could have seen the track in a northeasterly direction for a distance of 1,200 feet, and the locomotive which struck her could not have been more than 300 feet away, and probably was not half so far as that, and on a level 3 or more feet...