Smith v. Illinois Central Railroad Co.

• Decision Date: 29 June 1916
• Docket Number: 30758
• Citation: 158 N.W. 546,177 Iowa 243
• Parties: VERNIE SMITH, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellee
• Court: Iowa Supreme Court

158 N.W. 546

177 Iowa 243

VERNIE SMITH, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellee

No. 30758

Supreme Court of Iowa, Des Moines

June 29, 1916

Appeal from Cherokee District Court.--GEORGE JEPSON, Judge.

SUIT brought by Vernie Smith to recover damages alleged to have been caused by his being burned in a fire on a dump ground in the yards of defendant company at Cherokee, Iowa. There was a trial to a jury. Defendant introduced no evidence. At the conclusion of plaintiff's testimony, the trial court directed a verdict for the defendant. Plaintiff appeals.

Affirmed.

Claud M. Smith, for appellant.

Molyneux & Maher and Helsell & Helsell, Blewett Lee and W. S. Horton for appellee.

PRESTON J. EVANS, C. J., DEEMER and GAYNOR, JJ., concur.

OPINION

PRESTON, J.

The petition alleges, in substance, that plaintiff is a minor about four years of age; that, for some months and during the summer of 1914, defendant kept and maintained in its railway switch yards at Cherokee, Iowa, and at a point about 15 feet north of the sidewalk on the north side of Cherry Street, and between the Sioux Falls and Sioux City branches of its main right of way in said city, a dump, upon which the defendant through its employees, threw and piled the waste paper, straw, hay and other refuse and accumulations that usually and generally accumulate in a railway terminal station yard, and for two weeks previous to August 15, 1914, caused, permitted and allowed a fire to be and exist in said pile of refuse matter; that said fire was kept up and maintained and kept burning in said pile of refuse matter as aforesaid on said 15th of August, 1914, on which date the plaintiff, while passing along and over the sidewalk on said Cherry Street, in close proximity to said smouldering fire, was attracted by said fire, which fire was an attractive nuisance, and, while he was so attracted to the edge of the bank overlooking said smouldering fire, the bank beneath the feet of plaintiff gave way and caved in, and the body of plaintiff was caused to roll down said embankment and into and upon said smouldering fire, and plaintiff was burned. The answer was a general denial.

The case was tried upon the theory that the fire constituted an attractive nuisance. The dump was about 12 feet high. The fire was at the bottom of the dump. The claim is that it had been burning there from 8 to 10 days, and some of the witnesses put it that it had been burning there more or less the greater part of the summer. The testimony is that there was no blaze, and that the space where it was burning or smouldering was about 18 inches across; that, on or about the 15th of August, plaintiff, in company with an older brother seven years of age, started from their home about a block from the scene of the injury and walked a block to the north side of Cherry Street on the sidewalk, going up in another part of the city to play, and, at the point on the sidewalk opposite the fire on defendant's premises, plaintiff's claim is that they were attracted to the scene, and plaintiff went too close to the edge of the dump and it caved in with him and he rolled to the bottom and into the smouldering fire.

We shall set out somewhat fully the testimony of plaintiff's father and the other witnesses whose description of the premises is illustrative of the other testimony. After stating that there is no permanent disfigurement of the child, plaintiff's father says:

"The fire was between the Sioux Falls and Sioux City tracks, north of Cherry Street, in the city; it was 15 or 20 feet north of the Cherry Street sidewalk, in my judgment. There is a high bank there, perhaps 12 feet high. There are bridges near this track, about 30 feet from the sidewalk. Each bridge crosses that little creek. There is a dump between the two bridges north of the sidewalk from Cherry Street and between the two tracks. The bank is made of cinders, I think. The company dumped rubbish there over that bank during August, 1914; it was cobs and rubbish they picked up around the yards, paper, straw and hay. I saw men whom I thought were section men dumping rubbish there during the summer, but I don't know that they were section men. I do not know where the rubbish came from. There was no walk of any kind out onto the dump; the path just leads to the bank, and then there is this strip of 12 feet between the bridges and it is not used by anyone to get anywhere. One branch of the railway goes west to Sioux City, and the other goes northeast to Sioux Falls and forms a triangle there. Down beyond the dump is a low place that the creek crosses by the two railroad bridges, and there are no buildings down there of any kind; it is a low spot used for no other purpose."

Other testimony shows that the sidewalk there runs east and west over the railroad track, and along the sidewalk going west, there is a level space up toward the track about 18 to 20 feet wide, from the sidewalk up to the approach of the bridge; there is nothing dumped there, and it is all level. A railing along the sidewalk runs up to within a few feet of the track running to Sioux Falls. The level space is near the track running to Sioux City. There is a railing along the sidewalk east and west. The pile of rubbish extends out 20 or 25 feet from the sidewalk. The railing between the dump and the sidewalk runs up close to the tracks on each side. The rail extends as close to each track as it is practical to put it and still let the cars go by. This dump is a vacant spot not used by anyone, only as they dump stuff over it down to the creek bottom, where the creek overflows once in a while. Witness says:

"I should say it was 10 or 12 feet down there. It is much lower than the walk below, the sidewalk. It is flat up on top where they dump it in. It is bushes and weeds and shrubbery down below on the creek...