Wolfe v. Chi. Great W. Ry. Co.
| Decision Date | 24 June 1914 |
| Docket Number | No. 29492.,29492. |
| Citation | 147 N.W. 901,166 Iowa 506 |
| Parties | WOLFE v. CHICAGO GREAT WESTERN RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Chas. S. Bradshaw, Judge.
Action for personal injury. Reversed.
Carr, Carr & Evans, of Des Moines, for appellant.
A. G. Rippey and Parker, Parrish & Miller, all of Des Moines, for appellee.
The Des Moines Union Railway Company's terminal station building and depot grounds extend west from Fifth street to some distance beyond Sixth avenue. Fifth street and Sixth avenue run north and south. Cherry street is immediately north of the depot building, and Wagner street immediately south of the station grounds. These streets run east and west. Sixth avenue is closed, and does not extend through the station ground. The tracks of the terminal company are immediately south of the station, and extend east and west. There are six sets of tracks, two tracks immediately south of the depot building. South of these two tracks is a long train shed. Immediately south of this train shed is the third track, running directly east and west, from Fifth to Eighth street. Immediately south is the fourth track. Immediately south of that the fifth track. Immediately south of that the sixth track. Tracks 4 and 5 parallel track 3 until they approach Fifth street from the west. They then curve to the north. At the time of the accident complained of, there were what is called cross-over walks, paved walks leading across the tracks 3 and 4. One of these cross-over walks is situated about the center of the depot building, and the other some distance west of the center of the building; each extending directly south over the tracks. A large portion of the space, between the tracks, is paved with brick west of Fifth street, and some distance west of Sixth avenue. The brick paving between the fourth and fifth tracks narrowed as it approached Fifth street. These tracks were used by the defendant, the Milwaukee, the Minneapolis & St. Louis, the Wabash, and the Chicago, Burlington & Quincy Railway Companies, for receiving and discharging passengers, and for unloading and loading baggage and express, and a great number of trains arrived and departed over these tracks each day.
[1] The evidence tends to show that on the morning in question, at about 7:30 o'clock, plaintiff came from his office at the Burlington depot, south and east of Fifth street, to the Des Moines Union Terminal Company's Station, on business connected with his company. He was, at the time, local freight agent of the Chicago, Burlington & Quincy Railway Company. The business he came to transact was with a messenger on an outgoing Burlington train, which was standing on the fourth track, just west of the cross-over, and just west of the west line of the cross-over. The train was headed east. After the plaintiff had completed the business with the agent on this train, he started east, on the north side of the train, to the cross-over. When he reached the cross-over, he passed diagonally south and east, over this crosswalk in front of the train standing on track four, and then turned east, between tracks 4 and 5, and proceeded east to a point about 80 feet east of this cross-over walk, when he claims he was struck by the rear of the tender of an engine, belonging to the defendant, which was backing east, on track 5, hauling a dining car. At the time he was struck, he was attempting to pass south over track 5, and was in the act of passing over this track when struck. He claims that he was knocked violently a distance of at least 15 feet, and fell between the tracks; that the engine then came upon him and pushed him and rolled him to the east, a distance of 74 feet, when he managed to escape from the moving engine.
Plaintiff claims that after he left the messenger and proceeded eastward and reached the cross-over walk he then passed diagonally, on the cross-over walk, to the space between tracks 4 and 5. That after he got in the clear, and before he proceeded further east, he looked to the west, up track 5. That he could see 500 or 600 feet up the track to the viaduct, which is on Seventh street. He saw no train or engine upon track 5 at that time. That no train or engine was in sight, on track 5, west of the point where he turned to go eastward. That he continued walking between tracks 4 and 5, towards the east, without looking back. That, when he had walked about 80 feet, he turned to the south and attempted to cross track 5. That, while he was in the act of doing so, he was struck by the engine.
It is claimed that the engine that struck the plaintiff was at a point 15 or 20 feet west of Seventh street, at the time it started eastward; that the east line of Seventh street is 631 feet west of the west line of Fifth street; that Seventh street is 65 feet wide; that the total distance from the west side line of Fifth street to the point where the backward movement of the engine began was something over 700 feet. From this, it is claimed that while the plaintiff was walking 80 feet, or thereabouts, the defendant's engine had moved about 700 feet. Plaintiff testified that he was walking five or six miles an hour. If these figures are approximately correct (and there was evidence in the record to support them), the defendant's engine, after it started from Seventh street, must have been moved at a speed greatly in excess of the legal limit. The place where the train started, as we have given it here, is fixed by the defendant's witnesses. The plaintiff claims that, after he had cleared the cross-over walk and started to proceed east, he looked backward. The evidence tends to show that there was a clear view, on track 5 to Eighth street, far beyond the point from which it is claimed it started. He says he looked to see if there was any train upon the track. He said he saw none. He said there was none. It was for the jury to say, from the evidence, at what point the defendant started its engine. It was for the jury to say at what speed the engine was run.
Under plaintiff's contention, it would be absolutely essential that the defendant run its engine at a very high rate of speed in order to reach the point where plaintiff was struck, at the same time that plaintiff reached that point. That is, the train must necessarily have been operated at a high rate of speed, to reach the point where plaintiff was struck, while the plaintiff was walking 80 feet, at the rate of 5 or 6 miles an hour, if plaintiff's contention is true.
We think from this record that the jury might be justified in finding that the company operated its engine in excess of the legal limit, fixed by the ordinance of the city, six miles an hour. If the engine had been standing at Seventh street at the time plaintiff looked, and the plaintiff had seen it standing there, and from that point it had been operated at a rate of six miles an hour only, or if plaintiff had reason to believe, when he looked, that it would be operated at a lawful rate of speed, the plaintiff might well have assumed that he had plenty of time to pass the point where he was struck, before the engine could have reached that point.
It is claimed that the plaintiff was guilty of contributory negligence in that he did not look again before attempting to cross track 5; that it was not sufficient, to exculpate him, that he looked at the point where he says he looked.
[2][3] It was the duty of the defendant company to operate its train at a speed not to exceed the limitation imposed on it by law. This was a duty it owed to all affected by the regulation. This regulation was made for the benefit of the public. Therefore it was a public duty. A violation of this duty constitutes negligence. One who is injured by its violation may complain and have redress, if injured. The injured party had a right, in so far as his own conduct was concerned, to rely on compliance with the duty imposed; a right to regulate his conduct on the assumption that the party charged with the duty would not willfully disregard it. Therefore, one who approaches a place that suggests danger has a right to consider the duty, imposed by law, on the party from whose act alone the danger may arise, and a right to assume that the party charged with the duty will not willfully disregard his obligation. When he approaches a point that suggests danger, but which, under the conditions then apparent to him, involves no danger, he naturally assumes that the duty will be observed and, if observed, no danger will arise, and he ordinarily proceeds forward upon the assumption that an unforeseen danger will not be created, by the unlawful act of the party out of whose conduct the danger arises.
Nearly every relation in life and every act is bottomed on the perhaps unconscious presumption that those with whom we deal will do the thing that is right; will recognize and observe the duties they owe to us, be it either a legal or a moral duty. No one is either morally or legally bound to know that another will neglect a positive duty.
[4] Can one be held guilty of negligence, as a matter of law, who, observing a condition in which no peril or danger appears, acts on the assumption that there is no danger, if, thereafter, perchance, a condition does arise, through the wrongful and negligent act of another, which he, as a reasonably prudent man, had no reason to anticipate would arise? Or, in other words, is one guilty of negligence as a matter of law because he does not anticipate and foresee that another may disregard his duty and impose conditions that he has no right to impose and which the injured party could not, in the exercise of reasonable precaution for his own safety, have anticipated and foreseen? It is true that common experience teaches men that others do neglect their duty, even positive duty, and that out of this perils and dangers do arise. Therefore the law has wisely provided that each man shall exercise, for his...
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