Whelton v. Chicago, Milwaukee & St. Paul Ry. Co.
| Decision Date | 02 October 1920 |
| Docket Number | 33132 |
| Citation | 179 N.W. 140,189 Iowa 918 |
| Parties | BERTHA WHELTON, Administratrix, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--W. G. SEARS, Judge.
PLAINTIFF has verdict and judgment on a claim that the negligence of the appellant injured her intestate. The defendant appeals.
Reversed.
Hughes Sutherland & O'Brien and J. U. Sammis, for appellant.
George Yeaman and Jepson & Struble, for appellee.
I.
Decedent was not a trespasser, but a licensee. The claim and theory of the plaintiff is that decedent was walking on the track, and was killed by the negligent operation of a train that overtook him.
It is suggested for the appellant, in effect, that the physical facts negative that decedent was killed by being struck by the front end of the train. And appellant suggests other theories as to how the decedent came to his death. If, on assuming the theory of plaintiff to be correct, we must still hold that plaintiff cannot recover, we shall have no need to consider the validity of opposing theories advanced. It is one branch of the claim of the plaintiff that, on the train behind plaintiff, no bell was rung and no whistle blown. Let us assume that this is so. Let us further assume that the witness who speaks to it says he does not know when decedent looked back, does prove that decedent "looked back occasionally." Now it is shown without dispute that decedent had good hearing, and that it was night when decedent was struck. Concede, for the sake of argument, that the sense of sight was made proper use of. But, if the approaching train must have been heard in ample time to step off the track, what does it matter that its approach was not announced by either bell or whistle?
What is the state of the evidence on warning other than by bell or whistle?
The train was running on a very steep grade,--15 feet in 1,200,--and there were curves and reverse curves. It consisted of 26 loaded freight cars, and needed and had two engines. As decedent and his companion were walking the track in front of this train, they were able to understand what each said to the other. It is conclusively shown the train was making an unusual amount of noise, and it was a physical impossibility for these engines to haul that train up these grades without a great deal of puffing and noise; and it is testified to without dispute that the two continued to walk right on their way, and paid no attention to the train.
Not only is it so shown that the train must have been heard by decedent, but it is established that a witness who saw decedent on the track did at that time see and hear the train very plainly. True, whether one is guilty of contributory negligence is ordinarily a jury question. That proposition requires no citations. But all fact questions in a trial at law are usually for the jury. But as clear as all this is, is it that what is ordinarily a fact question may become a law question. It does become one when such fact is not in dispute. There is created a law question: to wit, the effect in law of the established...
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