Wagner v. Chicago & N.W.R. Co.

• Decision Date: 23 January 1904
• Citation: 98 N.W. 141,122 Iowa 360
• Parties: LAURA WAGNER, Administratrix of the Estate of Lawrence Wagner, Deceased, Appellee, v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

98 N.W. 141

122 Iowa 360

LAURA WAGNER, Administratrix of the Estate of Lawrence Wagner, Deceased, Appellee, v. THE CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 23, 1904

Appeal from Story District Court.--HON. J. H. RICHARDS, Judge.

ACTION at law to recover damages for the death of Lawrence Wagner deceased, due, as is alleged, to the negligence of the defendant in the operation of one of its trains in the city of Des Moines. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

Reversed.

James C. Davis for appellant.

G. A Underwood for appellee.

OPINION

DEEMER, C. J.

Plaintiff 's intestate, a little boy four years of age, was run over by a train being operated by defendant in its switchyards in the city of Des Moines, receiving injuries from which he almost instantly died. The accident occurred on property belonging to defendant abutting on East Fourth street, between Locust and Grand avenue, at about six o'clock in the evening of May 11, 1899. Defendant is sought to be held liable by reason of the following charges of negligence: "That they moved said cars and trains backwards without giving any signal or warning; that they did not have any conductor or brakemanor other person at rear of said cars and trains to see or give warning of danger; that they suddenly moved cars which had been standing there on a side track for a long time without any warning or signal at or near the place of danger; and that the defendant company and its agents and employes were also negligent in not having any guard or switchman at the crossing of Locust street at the time of the injury, and no flagman to watch out and guard against accidents." There is no doubt that the boy, when he received his injuries, was upon property belonging to the defendant, and that, in the absence of proof of some circumstances showing that it was under a duty to look out for the child, there can be no recovery.

East Fourth street in the city of Des Moines, between Locust and Grand avenues, is largely occupied by the defendant company with its tracks and switches. What are known as lots seven and eight in block nine, East Fort Des Moines, lying immediately east of East Fourth street, are owned by the defendant company, and the east sides thereof, save a strip between the two lots which is used as an alley, constitute a part of the defendant's switchyards. There is nothing to mark the dividing line between these lots and Fourth street. The east track in these yards runs very close to a building in lot eight known as the "Sinclair Building." A platform for loading and unloading goods from cars into the Sinclair Building was in existence at the time the accident occurred. This Sinclair track extended down to the line of Locust street, which is south of Grand avenue, where it stops. Just west of this first track, which was known as the "Sinclair track," is a driveway which lies between it and the next track west, which is known as the "scale track." This was for the purpose of reaching the alley between lots seven and eight. No means were provided for crossing the scale track from east to west, or vice versa, but a crossing was provided over the Sinclair track in order to have access to the alley. West of the scale track was a cinder path, which was used more or less by foot passengers, and west of this was the main line track of the defendant company. West of that were more tracks, and between them paths which were used by foot passengers. What were known as the "old main line track" and the one just west of that were on private property of the defendant company, and not in Fourth street, but there were tracks west of these which were in Fourth street. Before the time of the accident in question the first cinder path for foot travel was west of the scale track, but there was a driveway just east of it, and between it and the Sinclair track. There were no crossings provided over these tracks save at Locust street and Grand avenue, except the crossing over the Sinclair track at the alley between lots seven and eight. The child was struck by a car on the scale track about midway between Locust street and the alley between lots seven and eight to the north. The space between all the rails was simply surfaced in, as they are in the country at large, but between the tracks, or some of them, were surfaced cinder paths for people to travel upon. At the time of the accident defendant's employes were engaged in switching a work train onto the scale track for the purpose of allowing a passenger train to pass south on the main line track. There were three or four cars on this scale track south of the alley, and the work train was composed of flat cars. It came down onto the scale track, engine first, striking the cars which had been left there, and the south one ran over plaintiff's intestate, who was either under the last car south or close to the end thereof when the train struck the standing cars, or, as defendant contends, under the third car from the south. There was no trainman, conductor, flagman, or switchman at the end of the train. The boy's body was found between the two wheels of the north truck of one of the cars. There was something of a controversy about this, but the jury was authorized to so find.

There is some question in the evidence about the position of the child when he was struck--that is to say, as to whether he was under the south car or under the third one from the south, and as to the kind of car which was nearest Locust street. The jury found specially that the boy was not under the third car north, as we understand it, and with that finding we cannot interfere. But there was no finding as to his position under the south car. No one saw the child until after it was struck by the car, and the only evidence regarding the conduct of defendant's employes is as follows.

Mr. Dorran, the conductor, said: "As we approached Grand avenue, walking on top of the cars, my view was not obstructed. I looked toward the west side, clear down to Locust street. We were approaching Grand avenue. There was no child there towards Locust street. I did not see any."

Mr Braiden, superintendent, who was on the train said: "At and just before this last coupling was made I looked south towards Locust street. There was nothing to obstruct my view along the west side of that string of cars between there and the next crossing below. I looked almost constantly. * * * I did not see any children along the side of the cars; there...