Worden v. Humeston & S. R. Co.

• Decision Date: 21 December 1888
• Citation: 76 Iowa 310,41 N.W. 26
• Court: Iowa Supreme Court
• Parties: WORDEN v. HUMESTON & S. R. CO.

76 Iowa 310

41 N.W. 26

WORDEN

v.HUMESTON & S. R. CO.

Supreme Court of Iowa.

Dec. 21, 1888.

Appeal from district court, Page county; C. F. LOOFBOUROW, Judge.

Action by S. L. Worden, administratrix of A. B. Worden, against the Humeston & Shenandoah Railroad Company, to recover for personal injuries sustained by plaintiff's intestate while employed by defendant as an engineer, which resulted in his death, and were occasioned by defendant's negligence. There was a judgment on a verdict for plaintiff. Defendant appeals.W. W. Morseman, for appellant.

James McCabe and Burke & Prout, for appellee.

BECK, J., ( after stating the facts as above.)

1. The point most elaborated by plaintiff's counsel is that the verdict fails of support in the evidence. The accident in which the intestate was injured was the derailment of the engine upon which he was employed. There was evidence tending to show that the accident was caused by a defect in the track,--a depression which caused such rocking and swaying of a train passing over it as to attract the attention of and alarm persons riding on the train. This defect had existed for three days, at least, before the accident, and had attracted the attention of a conductor, who had communicated the fact as to the condition of the track to the section boss. The defect had attracted the attention of others. Without referring to other evidence we are justified in holding that upon this evidence there was no absence of proof that the injury resulted from the negligence of defendant in permitting the defect to continue after it was known to the employes in charge of the track and operating the railroad. Surely, the defendant ought to be so diligent and watchful through its employes that defects endangering the lives of passengers and employes ought to be observed, noted, and reported, so that they may be speedily removed. Any delay in reporting or removing defects which would permit the danger to continue after the repairs could have been made in the exercise of due diligence would be negligence. We think there is no ground for holding that the verdict is not supported by the evidence.

2. A witness, against defendant's objection, was permitted to describe the topography of the country about the place of the accident. Counsel for defendant claims that the purpose of the evidence was to show the improbability of the defects in the track being caused by a criminal act, inasmuch as the place was so plainly exposed to view. It appears that defendant claims that the defect was caused by the criminal act of some unknownperson. It is surely competent to contradict by evidence any inference in that direction. We think the evidence objected to tends to raise an inference that the defect was not caused by a criminal act.

3. The defendant objected to evidence showing that a relief train from Clarinda arrived at the place of the accident before a like train from Shenandoah. Counsel for defendant claim that the evidence was intended to show that the manager of the road was first on the ground, from which it would be argued that...