Smith v. C., R. I. & P. R. Co.

• Decision Date: 08 December 1880
• Citation: 55 Iowa 33,7 N.W. 398
• Court: Iowa Supreme Court
• Parties: SMITH v. C., R. I. & P. R. CO.

55 Iowa 33

7 N.W. 398

SMITH

v.C., R. I. & P. R. CO.

Supreme Court of Iowa.

Filed December 8, 1880.

Appeal from Jefferson circuit court.

This is an action to recover damages for personal injuries inflicted by the defendant. Upon the production of the plaintiffs' evidence the court, pursuant to a request of defendant, instructed the jury to return a verdict for the defendant, which was done. The plaintiff excepted and appeals.Leggett & McKinney, for appellant.

Slagle, Acheson & McCracken, for appellee.

DAY, J.

The evidence shows the following facts: The plaintiff keeps a hotel at Parlee, Jefferson county. The side track of defendant's road passes within about five feet of plaintiff's house. East of this side track is the depot, and east of the depot the main line. The county road runs east and west just south of plaintiff's house and the depot. Across the road there is a small culvert, connecting with a ditch. On the night of the thirty-first day of July, 1877, a freight train came in from the north, and side-tracked upon the west track, the locomotive extending over the culvert in the road. The plaintiff, in his testimony, explains the situation as follows: “South of the depot there is a ditch that runs east and west that carries water, and south of that there is a ditch between the side track and the main track, and there is generally water there, and that is quite a length. You would have to go pretty near the points of the switch to be anyways level, and, after you get back there, there is the ditch and the culvert. The grade north of my house is very bad; the ground between our house and the stock-yards is very bad; in fact, there is no passage there.”

“ Question. Can you go through there on the south side? Answer. No, sir. Question. Can you go through there on the north side? Answer. No, sir.”

On cross-examination the witness stated: “There was no way to go around the end of the train. On the south there was a ditch to cross that drains the mines. Sometimes there is a great deal of water in it. I do not know whether it was running that night or not. There is a pond nearly all the time between the side track and the main track. Could not have gone around the cattle pens very well; there are ditches there. I would not like to risk it at night.” The train lay across the highway for about three-quarters of an hour, and was not cut.

One Bedford was selling goods at the plaintiff's door. When he heard the freight train coming in from Fairfield, he began to gather up his things, saying he wanted to go on the train coming in. Upon this branch of the case the plaintiff testifies as follows: “Captain Bedford asked me to help him to the caboose. I picked up one of his satchels, and we started. I could not get through on the street; the train was there, and I could not get through on the south; and the other train had come in, and I think there were some coal flats pushed on ahead there, and there was a big ditch there and a culvert, and when we got about the middle distance between the water-tank, about 50 or 60 feet from the front of my building, he started through under the bumpers where the pins go in, and I would not go in there, but I passed him through his satchels, and he pulled them through and went on, and I went to about the middle of the car and stopped about two seconds to see if the train would move. That was before I got under the car. I knew if they made a signal I could get through before they backed, for I have done it; and I started under the car, and, just as I got fairly under, why they backed right up. The first thing I heard was the click of the brakes, and it was pretty dark, and I squatted down as low as I could so my head would not...