Young v. Chicago, M., St. P. & P. Ry. Co.
| Decision Date | 15 June 1937 |
| Docket Number | 43876. |
| Citation | 273 N.W. 885,223 Iowa 773 |
| Parties | YOUNG v. CHICAGO, M., ST. P. & P. RY. CO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Cerro Gordo County; Joseph J. Clark Judge.
Appellant's intestate was run over and killed by a freight car or cars on the night of January 5, 1935, at about 5:30 a. m., while the switching crew was manipulating or spotting some cars in the switch yards of appellee company at Mason City, Iowa. It is alleged that his death was due to the negligence of the company, for which plaintiff seeks to recover damages. At the close of all the evidence, the court sustained a motion for directed verdict for the defendant, and plaintiff appeals.
Affirmed.
J. C Robinson, L. A. Moe, and Raymond Zebker, all of Mason City for appellant.
Hughes, O'Brien & Hughes, of Des Moines, and Blythe, Markley, Rule, Dibble & Cerney, of Mason City, for appellee.
On the night of January 5, 1935, decedent had been watching a card game in progress at the Granada Café, located a block or so from the scene of the accident. He left this place at about 5 a. m. No one saw him after he left the caféuntil he was picked up under a train of cars some thirty minutes later. Fifth and Sixth streets southeast in Mason City run directly east and west. Appellee's sidetracks, five or six in number, run north and south across Sixth street, and come to an end or terminate at Fifth street. The freight depot is west of the tracks and extends the entire distance between Fifth and Sixth streets, with a platform on the east side of the depot building. This platform is on a level or even with the floor of an ordinary freight car, and extends the entire distance from the sidewalk line on the north side of Sixth street to Fifth street. When a car is on the west track next to this platform, there is a space of only 18 inches between the east edge of the platform and the side of the car. According to the switching crew of appellee company, consisting of the engineer, fireman, and two brakemen, who testified at the trial, a refrigerator car had been spotted just north of this sidewalk crossing at about 2 a. m. that morning, and the car left standing in front of this platform, the south end of the car being practically even with the sidewalk line along the north side of said Sixth street. At about 5:30 that morning the trainmen had hitched the switch engine on to four other cars and were in the act of pushing them north across Sixth street for the purpose of coupling them on to this refrigerator car, which had already been placed across the street in front of the depot platform. As they were moving these cars north, one of the brakemen walked ahead to guard the street crossing, the other hung on the northwest corner of the car farthest north that was to be coupled to the refrigerator car. Each of these men had a lantern. As this north freight car to which the brakeman was hanging approached within a few feet of the refrigerator car, the brakeman alighted on to the pavement and stood there watching the cars and giving signals until the automatic coupling took place. They say these cars were proceeding across the street at from 1 1/2 to 3 miles per hour. The brakeman who had been guarding the street crossing had climbed upon the depot platform and was signaling the engineer to proceed northward, and the train had been moved about a car length when he noticed one of the cars bounce up as if it had run over something, and at once gave the " bad" stop signal to the engineer, which brought the train to an immediate stop. Upon an investigation they discovered the gruesome sight of decedent's crushed and mangled body lying under a car on this west track, about 65 feet north of the sidewalk extending along the north side of Sixth street. His head and the upper portion of his body was between the rails under the car, while his lower extremities were west of the west rail of the track which runs directly in front of this platform. The truck wheels had passed over his body, practically severing him in twain. No sound or outcry was heard. One of these trainmen went immediately to a telephone nearby and called police headquarters, notifying them of the accident. Some one notified the coroner, and in a few minutes three policemen, a coroner, and an undertaker appeared upon the scene. They were all examined as witnesses at the trial in the court below.
These two brakemen, who were in a position to see, testified positively that they saw no one on this sidewalk crossing. They did not see him at any time, and did not know what the car had passed over. There is absolutely no proof of the whereabouts of the decedent from the time he left this caféuntil he was found dead. Some small blood spots were discovered about 6 feet north of the sidewalk over which decedent might have been passing on his way home. These blood spots, as well as marks in the snow which appeared to have been made by the decedent's feet dragging in the snow, extended from this point to where the body was found. Aside from this, there is nothing from which the jury could determine whether decedent was on the sidewalk or on the defendant's right of way at the time he was struck. It would be a matter of pure conjecture and mere speculation or guesswork on the part of a jury under this record, should it find the decedent was struck while on the sidewalk. The circumstances are such that it is just as reasonable to assume that he was off the sidewalk and along side a freight car standing near the sidewalk at the time of the accident.
There is a dispute as to what particular car the body was under when found, and just what particular car the blood stains were upon. But if we give plaintiff's version of the whole affair credence, and concede the truth of the testimony which was proffered and which the court refused to admit-except for impeachment purposes-we are still confronted with the fact that there is an entire absence of evidence that the negligence alleged was the cause of the death. There is no evidence to show where the deceased went after he left the card game. No one saw him upon Sixth street or the sidewalk or even approaching the place of the accident. If we attempt to reconcile the testimony of all the witnesses and try to harmonize it on the theory that they were all endeavoring to tell the truth, then it is far more probable that this man was killed while he was in between the refrigerator car and the platform, attending to some need of his own, and in the darkness of the night was unobserved by the trainmen, and the operation of the train from the south was unnoticed by him, and, in attempting to leave this place slipped and fell, or was in some way caught between the platform and the car and was knocked down and dragged along and finally run over and crushed to death. Appellant's theory is that this refrigerator car was not standing over in front of the depot platform, although the entire train crew testified that it had been placed there at 2 o'clock that morning. Appellant's theory is that the refrigerator car was bunted or kicked across Sixth street, unaccompanied by any one, and without any warnings or danger signs or signals, ran over the decedent while he was on the sidewalk along the north side of Sixth street. This theory is bottomed upon some evidence given by the coroner that was not admitted...
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