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

• Decision Date: 20 October 1914
• Docket Number: No. 29414.,29414.
• Citation: 167 Iowa 90,149 N.W. 188
• Parties: SANDERSON v. CHICAGO, M. & ST. P. RY. CO.
• Court: Iowa Supreme Court

167 Iowa 90

149 N.W. 188

SANDERSON

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

No. 29414.

Supreme Court of Iowa.

Oct. 20, 1914.

Appeal from District Court, Hancock County; J. J. Clark, Judge.

Action to recover damages for personal injury resulting in death. Reversed and remanded.John Hammill, of Britt, and Cook, Hughes & Sutherland, of Cedar Rapids, for appellant.

Senneff, Bliss & Witwer, of Mason City, for appellee.

GAYNOR, J.

The plaintiff brings this action as administratrix of the estate of Joe H. Sanderson to recover damages for his death. It is claimed that his death was the result of injuries received by being struck by an engine on one of defendant's passenger trains, on the morning of the 9th day of April, 1912. The accident occurred in the town of Garner. The deceased was a man of 45 years of age. He had lived in this town for 13 years, and at the time of his death was engaged in the dray and transfer business. During the last years of his life, he had made the morning trains each morning in the discharge of the duties connected with his business. These morning trains referred to were the trains operated on defendant's tracks, and it appears that the defendant's east and west bound trains were in the habit of meeting at this station in Garner, and did meet there whenever the trains were on time. It appears that defendant's tracks, at the point where the accident occurred, run east and west; that there are two tracks, one next to the depot and one a few feet immediately north of the first track; that the track immediately north of the depot is known as the main track. A short distance north of that is what is known as the passing track. These tracks are parallel until they reach a point somewhat west of the depot, at which place the tracks curve sharply to the north. It appears that on the morning of the accident, about 8 o'clock in the forenoon, the west-bound passenger train arrived from the east and was standing on the side track. It appears that it had arrived some time before the eastbound train, which caused the accident arrived, and had pulled up to the depot on the main track, unloaded its passengers and baggage, and had received such passengers as desired to take passage on that train for the west, and then backed east to the switch and had been pulled up upon this passing track along the north side of the main track. So far as the record discloses anything upon this question, both these trains were on time that morning, and the west-bound train was pulled up on this passing track to allow the east-bound train to come in and occupy the main track at the depot. There is no evidence in this record as to what Sanderson was doing immediately before the injury, or what he had been doing that morning before the accident. There is evidence that prior to this morning, this west-bound train, when placed upon the passing track, usually pulled to the west end of the switch, before the east-bound train came in. It appears that on this morning, the engine on the westbound train had passed the station on the passing track to a point more than 100 feet west of the station. It appears that there is a street west of the depot that runs north and south; that this street was about a block west of the center of the depot. The depot extends east and west on the south side of the main track, and is about 45 feet long east and west. There is nothing in the record to show the distance between the north rail of the main track and the south rail of the passing track. There is nothing to show at what point this passing track connects with the main track on the east, or where it enters upon the main track on the west. There is evidence in this record upon which the jury might well have found the defendant to be negligent in respect to some of the matters charged as negligence in the petition. Thus it is charged in the petition that the defendant failed to give any notice or warning of the approach of the train from the west; that defendant failed to ring the bell before reaching the street or highway west of the depot, or while approaching the place where plaintiff was struck. At the conclusion of the plaintiff's testimony, the defendant moved for a directed verdict, basing its motion upon the fact that the plaintiff had failed to show that the deceased was not guilty of negligence contributing to his injuries, and, further, that the record affirmatively showed that the deceased was guilty of contributory negligence precluding a right to recovery. The motion was overruled. The defendant introduced no evidence. The cause was submitted to a jury; a verdict returned for the plaintiff; judgment entered upon the verdict. Defendant appeals, assigning error on the action of the court in overruling defendant's motion for a directed verdict.

The defendant makes several assignments of error, but in the view we take of the case, it is unnecessary to discuss more than one. That is, Has the plaintiff failed to show that the deceased was free from negligence contributing to the accident which caused his death, and does the record affirmatively show contributory negligence on his part?

But one witness was produced upon the trial who claims to have seen the deceased immediately before and at the time he was struck. He testifies, substantially as follows:

“I was standing at the east end of the depot at the time when the west-bound train pulled into the station, and the passengers were unloaded. After it got through with its work, it backed down to the switch and took the switch track and pulled up to the depot on the passing track, and stopped with the engine and baggage car past the depot, the engine being east of and within a coach length of the water tank. I saw Mr. Sanderson there when the west-bound train was standing on the side track. I saw him run across the track to the west-bound train. I did not see any one wave for him to come. I think some one called him. I thought I heard some one call him. I do not know who it was. I did not notice him until I saw him run across the track. This was before the eastbound train came into the depot. He had started across the track before I saw the east-bound train coming. I first saw the east-bound train, the one that caused the accident, when it came to the water tank. I should judge this water tank is between 80 and 100 feet from the depot, about that. My best judgment is that it is 100 feet from the west end of the depot. The depot is 45 or 50 feet long. Sanderson was at the east end of the depot, or near there, when he started to cross the track. I was standing about 4 feet east of the east end of the depot, and Sanderson was about 10 feet to the west and to the north of me when he started. He ran right across the track.”

He was asked this question then:

“Did he get clear across the track, or did the train strike him as he stood? A. He stood there. Yes, the train struck him as he stood. Q. How long do you think he stood there? A. I do not know. It was not very long. A fraction of a minute or a minute. He was facing to the north. I do not think he was looking towards the east. He was not looking in the direction in which the train came, and so far as I saw, he did not look in that direction. I did not see him look that way. He might, and he might not.”

He was then asked this question:

“Well you saw him all the time, didn't you? A. I saw him all the time. I did not see him look in that direction at all. I cannot say that I did. I did not see him look that way. He was looking straight north all the time, from all I know, and I saw him from the time he left the depot platform until the time he was struck. The west-bound train, on the passing track, was not moving when he was hit, but it was moving when he started across there. Mr. Hanson and a lady were across the track right by him. The lady was going to get on the train, I suppose. I did not see her get on. I know she was standing at the coach of the west-bound train, and a baggage car and mail car were ahead of the coach. Also the smoker and the engine of the west-bound train. The engine on the west-bound train was emitting considerable smoke. The wind was from the northwest, and the smoke blew across there down around the depot, and down where I was standing. I saw the engine of the west-bound train when it struck Sanderson. When the engine struck him, he was facing approximately north. I have noticed this west-bound train before. Usually, after its work is done and it takes the passing track, it pulls up west to the switch. The switch is away out there. It is a long passing track, a number of rods. Before this morning, I had observed that when defendant's west-bound train stopped on the passing track for the east-bound train to pass, it pulled up to the end of the passing track to the switch. I never saw the west-bound train standing in the position it stood this morning. They generally pull up a little further.”

The evidence discloses that this train, after it passed the water tank, approached the place where Sanderson was struck at from seven to nine miles an hour. It appears that it stopped at the station, at the place it usually stopped, for the purpose of loading and unloading passengers. At least there is no evidence that it did not stop at the usual place at which it was stopped at this station. There is evidence that this west-bound train, on the passing track, usually pulled to the other end of the switch to be ready to come on the main track, before the east-bound train came in.

S. S. Williamson, called for the plaintiff, testified that since the morning on which Sanderson was injured he had made some observations for the purpose of ascertaining how far west a person could see, along the main track, from the point where Sanderson was struck. He testified as follows:

“I have since that morning stood about the position where we found Mr. Sanderson, and sighted west along between the two rails. My line of vision crossed...