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

• Decision Date: 08 December 1880
• Parties: SMITH v. THE C., R. I. & P. R. CO
• Court: Iowa Supreme Court

7 N.W. 398

55 Iowa 33

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

Supreme Court of Iowa, Des Moines

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 plaintiff's 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.

AFFIRMED.

Leggett & McKemey, for the appellant.

Slagle Acheson & McCracken, for the appellee.

OPINION

DAY, J.

The evidence shows the following facts: The plaintiff keeps a hotel at Perlee, Jefferson county. The sidetrack 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 depot. Across the road there is a small culvert, connecting with a ditch. On the night of the 31st day of July, 1877, a freight train came in from the north, and sidetracked 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: "Capt. 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 fifty or sixty 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 strike the car, and I sprang out this way (showing how), and this leg was a little behind and the leg got caught with the wheel there, between the wheel and rails. There was no signal made, no bell rung or whistle blowed. I was going back there...