Ward v. Chicago, B. & Q.R. Co.

• Decision Date: 28 January 1896
• Citation: 65 N.W. 999,97 Iowa 50
• Parties: J. A. WARD v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

65 N.W. 999

97 Iowa 50

J. A. WARD v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 28, 1896

Appeal from Montgomery District Court.--HON. N.W. MACY, Judge.

ACTION at law to recover damages for a personal injury. Trial by jury. Verdict and judgment for the plaintiff, and defendant appeals.

Affirmed.

J. M Junkin and Smith McPherson for appellant.

R. W Beeson, C. E. Richards, and N. Hanna for appellee.

OPINION

ROTHROCK, C. J.

I.

The plaintiff is a farmer, and resides on his farm, six miles southeast of the city of Red Oak. On the twelfth day of December, 1893, he was engaged in hauling straw to the city. He used two wagons. One was driven by himself, and the other by one Larson. They approached the city by the usual traveled road, which is an extension of Eighth street. The railroad track of the defendant crossed Eighth street within the city limits. The track is elevated above the natural surface of the street some eight or ten feet, and approaches or embankments are made on each side to enable travel to go over the track. These embankments are quite steep. As the plaintiff and Larson approached the crossing, they stopped their teams at the foot of the embankment, on the south side of the railroad, to look and listen for the approach of a train from the east. The team plaintiff was driving was in front of the other, and the plaintiff went ahead of his horses, up on the grade, to where he could see a whistling post to the east, and no train was in sight, nor within hearing distance. The plaintiff started up his team and crossed the track, and Larson followed him. Just after the wagon Larson was driving passed over the track, and while the rear end of his load of straw was within a few feet of the track, a passenger train from the east, running at a high rate of speed, passed over the Eighth street crossing, and, at or about the crossing, two sharp, shrill whistles came from the engine, which frightened Larson's team, and they ran down the slope of the crossing into the plaintiff's wagon and load of straw, upset it, and threw the plaintiff off the load in such a manner that he was severely injured. The plaintiff was about one hundred and sixteen feet from the crossing when the whistle was sounded. The acts of negligence complained of in the petition are (1) that the train was run at an unlawful rate of speed within the corporate limits of the city, and in violation of a city ordinance; (2) that the defendant's employes failed to give any signal of the approach of the train by ringing the bell on the engine at least sixty rods before reaching the crossing, and from that point continuously until the engine passed the crossing; and (3) that they negligently sounded the steam whistle at the crossing, and within a few feet in the rear of Larson's team. It was further alleged in the petition that the approaches to the crossing were negligently constructed, but that question was not submitted to the jury, because the manner in which the approaches were constructed and maintained was not the proximate cause of the injury, nor connected therewith. But the court permitted the plaintiff to show the condition of the approaches, upon the question as to how the plaintiff should have conducted himself in making the crossing, and also as bearing on the question as to the proper management of passing trains. We discover no error in this limiting the effect of the alleged improper approaches, and we need not further consider that question.

II. There is no complaint made by the defendant that the plaintiff and Larson did not use every proper precaution in approaching and crossing the track. There is no question of contributory negligence in the case, and the evidence is undisputed that the train was run at a greater rate of speed than that prescribed in an ordinance...