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

• Decision Date: 18 January 1895
• Citation: 61 N.W. 967,93 Iowa 248
• Court: Iowa Supreme Court
• Parties: THOMAS v. CHICAGO, M. & ST. P. RY. CO.

93 Iowa 248

61 N.W. 967

THOMAS

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

Supreme Court of Iowa.

Jan. 18, 1895.

Appeal from district court, Marshall county; D. R. Hindman, Judge.

Action at law to recover damages for injuries sustained by Earl Thomas, a minor son of the plaintiff, through the alleged negligence of the defendant company. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. Reversed.Mills & Keeler, for appellant.

J. L. Carney, for appellee.

DEEMER, J.

On the forenoon of May 15, 1890, Earl Thomas, a minor son of plaintiff, aged 3 years and 10 months, was, with a little companion, playing upon an open, uncovered bridge, located upon the defendant's main line of road, about 1,900 feet west of the station of Rhodes, and, while there at play, was run over by a train going towards the west, and his right foot and leg were so maimed and crushed as to necessitate amputation. It is averred in the petition that, without fault on the part of his parents, the child went upon the track and the bridge, and was in plain sight from the station, and at all points along the road leading from the station to the place of accident; that defendant's employés, with knowledge that the children were upon the track, started a train from the water tank at the station, a distance of about 90 rods from the bridge, westward (the engine being in front, but with the tender foremost, and with the pilot attached to the cars), and negligently and carelessly ran the train over the plaintiff's child; that there were four persons (the engineer, fireman, conductor, and brakeman) upon the engine, and each of them knew that the child was upon the track and bridge; that the employés of defendant negligently started the train, and, for some distance from the tank, did not look along the track over which they were going, or exercise any degree of care or caution in the operation of the train, or to discover whether or not the track was clear; that the train was a wild train, not running on schedule time, and was running with engine backwards; that the train was not manned with a sufficient number of brakemen; and that the engine was without steam or air brakes. Plaintiff further averred that the engineer and employés upon the train saw the child, with his playmate, upon the bridge, at a greater distance than was necessary, with proper effort, to stop the train, and knew the perilous position they were in, but that they negligently allowed the engine and train to approach and reach the bridge without signal of bell or whistle, and without any effort to stop the train, or remove the children from the track, and negligently and carelessly ran upon and injured plaintiff's child. The defendant, in its answer, admitted the injury done to the child, by which it lost its leg, but denied each and every other allegation in the petition. On the issues thus joined, there was a trial to a jury, and a verdict returned for plaintiff, on which judgment was rendered, and defendant appeals.

The court below, in its instructions, eliminated from the case all charges of negligence, except the last one in the petition, viz. the one alleging that the defendant's employés were negligent, after they saw the children upon the track, in failing to use all available means at hand to stop the train, and avoid injuring them. This charge of negligence was submitted to the jury, and, in answer to special interrogatories, the jury found that the engineer and employés in charge of the train did not do all they could, with the appliances at hand, to stop the train as soon as they discovered the children upon the track. The jury also found, specially, that the train could have been stopped by the defendant's employés, with the appliances at hand, after they saw the children on the bridge, in time to have prevented the accident. And they further found that the engineer did not whistle for brakes, and reverse his engine, as soon as he knew the objects on the track were young children. The court, in effect, instructed the jury that defendant's employés were not bound to anticipate that young children would be upon the bridge in question, and in danger from passing trains, and that they were not required to keep a constant lookout to discover children on the track, and that neither the fact that the engine was running backwards, nor that it was running at a high rate of speed, would, of itself, constitute negligence. But it also instructed that if the employes of defendant who were operating the train saw the plaintiff's child upon the railroad track or bridge, and knew that he was too young to take care of himself, then they would not be justified in assuming that the child would step aside and avoid injury, and that in such case it would be the duty of such employés to employ every available means at their command to stop the train, and avoid injuring the child, and, if they failed to do so, then the company would be responsible. The court also gave proper instructions with reference to the care required of plaintiff to prevent his son's going upon the track, and, further, gave the following: “You are instructed that the bridge and track where the plaintiff's son was injured was and is solely and exclusively for the use of defendant in operating its trains, and the plaintiff's son had no right or license of any kind to be there; and the fact, if it be a fact, that people constantly walked upon it, would not give them any right to do so. No matter how often people may have walked upon it, they would be doing so without right or authority; and any testimony that has been introduced tending to show that people occasionally walked upon it, if any such has been introduced, can only be considered by you in determining the question whether or not the engineer and employés in charge of the train actually saw the plaintiff's son in time to have stopped the train, before reaching the child, with the means and appliances then at their disposal.” There was testimony in the case that the right of way where the child was injured was much frequented by pedestrians, in passing from a highway, a few rods west of the bridge, to the town of Rhodes, and the instruction was intended to apply to this state of facts.

We think the instruction is wrong--First, because the latter part of it entirely neutralizes the first part; and, second, because it announces an incorrect proposition of law. The first part of the instruction clearly announces the rule that the children were trespassers, and had no right or license to be upon the track or the bridge. If they were trespassers, then the company owed them no duty until its employés actually saw them upon the track, and in a place of danger. Then, and not till then, did any active duty on the part of the defendant's employés commence. It has long been the established rule in this state that a railroad company is not required to keep a lookout for trespassers, and that it is not negligent in failing to discover them upon its track. This is an undoubted rule, sustained by an unbroken line of authorities. See Masser v. Railway Co., 68 Iowa, 602, 27 N. W. 776;Burg v. Railway Co. (Iowa) 57 N. W. 680;Morris v. Railroad Co., 45 Iowa, 29;Richards v. Railway Co. (Iowa) 47 N. W. 63. We are aware that a different rule has been held in some of our sis...