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

• Decision Date: 14 December 1894
• Citation: 92 Iowa 622,61 N.W. 218
• Court: Iowa Supreme Court
• Parties: WINEY v. CHICAGO, M. & ST. P. RY. CO.

92 Iowa 622

61 N.W. 218

WINEY

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

Supreme Court of Iowa.

Dec. 14, 1894.

Appeal from district court, Crawford county; G. W. Paine, Judge.

Action at law to recover damages for the destruction of a wagon belonging to plaintiff, and for personal injuries inflicted upon him through the alleged negligence of the defendant. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals. Reversed.P. E. C. Lally and J. P. Conner, for appellant.

T. J. Garrison and John N. Baldwin, for appellee.

DEEMER, J.

1. The plaintiff's petition is in two counts. In the first he seeks to recover for damages done to his wagon, which he alleges was struck and injured at a highway crossing on defendant's line of road, through the negligence of defendant, and in the second for injuries done to his person, loss of time, etc., by reason of the collision. The alleged grounds of negligence are: “First, the failure of the defendant to sound the whistle or ring the bell of the locomotive engine of the train before reaching the crossing where the injury occurred; second, because the defendant had constructed and allowed to stand along the north side of the track a fence which obstructed the view of the track and engine to one passing from the north, and up to and across the defendant's track at the crossing where the injury occurred; third, because the defendant allowed a high embankment of earth to accumulate and remain on the north side of the track, and east of the crossing, which obstructed and prevented a sight of the train from the east, coming towards and up to the crossing where the accident occurred, to one passing from the north up to and across the defendant's track on the highway where the collision took place.” The court in its instructions, among others, gave the following: (1) “The answer of the defendant, being a general denial, puts in issue all the allegations contained in the plaintiff's petition and amendment thereto, except the corporate character of the defendant; and the burden is on the plaintiff to establish all the other allegations so made by him by a preponderance of the evidence, and, if he has failed to do so, then your verdict should be for the defendant.” This instruction was clearly wrong, in this: that it required plaintiff to prove, not only that his wagon was damaged and he injured in person, but each and all of the alleged negligent acts, before he could recover. The instruction plainly says that, unless he does so, the verdict should be for defendant. True it is that in other instructions the rule was given that plaintiff would be entitled to recover if he proved any one of the several allegations of negligence; but nowhere do we find it stated that he might recover for damages done to his wagon, without proof that he was also injured in person. Had the true rule been announced in subsequent instructions, then the whole would be subject to the objection that they are contradictory. In the case of Harley v. Brick Co. (Iowa) 48 N. W. 1000, an instruction very similar to the one in question was disapproved; and it has frequently been held that contradictory instructions are erroneous. See Hawes v. Railway Co., 64 Iowa, 315, 20 N. W. 717;Conway v. Railroad Co., 50 Iowa, 465;Hart v. Railroad Co., 56 Iowa, 166, 7 N. W. 9, and 9 N. W. 116;Brown v. Bridges, 31 Iowa, 138; 2 Wood, R. R. p. 1518; Artz v. Railroad Co., 34 Iowa, 153;Reed v. Railway Co., 74 Iowa, 188, 37 N. W. 149;Schmidt v. Railway Co., 75 Iowa, 606, 39 N. W. 916;Nosler v. Railway Co., 73 Iowa, 268, 34 N. W. 850.

2. The court instructed the jury, in the twelfth paragraph of its charge, as follows: “The railroad track itself was a warning of danger to the plaintiff when he went upon it, and it was the duty of the plaintiff, in approaching the crossing, to exercise his reason and his senses of hearing and seeing to save his team and himself from injury; and if he fails to show by the preponderance of the evidence that he did so, and you find that in consequence thereof the plaintiff was injured, or if such failure in any degree contributed to such injuries, the plaintiff cannot recover. It was not only his duty to look and listen for approaching trains at all points in his passage, but, if the view or the sound of the train was obstructed...