Swanger v. Chicago, M. & St. P. Ry.

• Citation: 109 N.W. 308,132 Iowa 32
• Parties: J. A. SWANGER, Appellant, v. CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY, Appellee
• Decision Date: 24 October 1906
• Court: United States State Supreme Court of Iowa

109 N.W. 308

132 Iowa 32

J. A. SWANGER, Appellant, v. CHICAGO, MILWAUKEE, & ST. PAUL RAILWAY, Appellee

Supreme Court of Iowa, Des Moines

October 24, 1906

Appeal from Shelby District Court.--HON. O. D. WHEELER, Judge.

ACTION to recover damages for a personal injury. There was a directed verdict and judgment for costs in favor of defendant, and plaintiff appeals.

Affirmed.

Cullison & Robinson, for appellant.

Byers Lockwood & Byers, J. C. Cook, and H. Loomis for appellee.

BISHOP J. DEEMER, J. concur.

OPINION

BISHOP, J.

The town of Portsmouth, a station on the line of defendant's railway in Shelby county, contains about two hundred and fifty inhabitants. The railway tracks run through the town north and south, and the general surface of the ground is level. To the north there is a clear view up the track for about a quarter of a mile from the depot building; the track then curves, and is lost to sight behind a hill. Plaintiff was employed at a creamery, which is situated about two hundred and fifty feet east of the track, and on a street which crosses the track about five hundred feet south of the depot building. On the morning of the accident, December 29 1902, he hitched up a team at the creamery to go into the country to gather cream, and this had been his regular duty for a period of nearly a year. In crossing the track as he drove west he was struck by a south-bound passenger train, which passed through the station without stopping, and sustained the injury of which he complains.

One of the grounds of the motion for a directed verdict was that plaintiff had failed to show that he was himself free from negligence contributing to his accident and injury. A fair reading of the abstract and the amendment thereto filed by appellee satisfies us that the motion on that ground was properly sustained. Plaintiff's team was hitched to a sled, and in front over the seat was a top similar in shape to a buggy top, constructed of bows covered with canvas above and at the sides and back. Plaintiff says he knew that the train which was due at the station at six o'clock had not yet arrived; he also knew that trains frequently ran through the station without stopping. He says that from where he hitched up his team he had a clear view up the track north to the curve; that with the fact of the belated train in mind he looked to see if it was coming, and, not seeing it, he pulled his cap down over his ears to keep them warm, and got into the sled and drove west toward the crossing. The team moved at a walk, as there was but...