Murphy v. C., R. I. & P. R. R.

Cole, J. — The facts of this case are very few, and are free from complication; and the evidence establishing them is almost without conflict. To enable the reader to understand fully the case as made by the evidence, the locus in qtoo, as it is shown by the surveyor’s plat before us, should be described. The track of the defendant’s railroad through the city of. Des Moines, where the accident happened, runs substantially east and west. The line of the Des Moines Yalley railroad is upon Market street, from Tenth street west; the former residence of the deceased being at the corner of Market and Tenth, fronting on Market street. Just before reaching Tenth street the line of defendant’s road takes a diagonal course from Market tp Yine, which is the next street north, and strikes it, after passing through two blocks, at the corner of Eighth street and Yine; and it crosses the lot whereon deceased resided, near midway of it and just at the rear of his residence. From Eighth street to Fifth, Yine street and the half block of lots on the north side of it, are occupied by defendant for freight and car depot grounds, warehouses, water tanks, and engine house. As this depot ground is approached from the east the grade is descending, and the track is upon an embankment which is ten to twelve feet high in the rear of the residence of — 541 — the deceased, and is gradually less till it reaches Eighth street, where there is none — the track there being on a level with the ground around. This track, immediately east of the freight depot, etc., had been used ever since the road was built for the purpose of switching cars upon the different tracks of the depot grounds. The manner of doing it was to run the cars east and up the grade by means of an engine, and hold them there by use of the' brakes till the engine started upon its return, and then, by easing the brakes, allow the cars to descend the grade west, and by means of the different switches they were placed upon the desired tracks. It is sometimes called a running or a drop switch. On the afternoon of June 6, 1871, the deceased, in company with one Wm. Eagan, started to town, going west from the residence of the deceased. As they came out of the house they went up the embankment and on to the track of the defendant, walking between the rails, and had walked five or six rods, when they met an engine and car passing up the grade, and stepped out of the way for them to pass, and then stepped back inside the rails, and probably walked from one to two hundred feet, when they heard the engine coming and stepped out of the way again. “ After the engine passed, Murphy walked sometimes on the outside of the track — probably as far as across this room, thirty-five or forty feet, and then stepped up on the ties and took two or three steps — during which time I heard a voice from the top of the car telling some one to look out, and this was not over a minute, I should think, before the car struck him — and he was in the act of stepping upon the track again at the time the accident occurred. It could not have been over a minute after I heard the voice before the car struck him; for, as soon as he turned his head to look back, the car. bumped him right down. When I heard the voice I think Murphy was just in the act of stepping inside of the track; he was right on the end of the ties. Just before he got struck, he was walking on the outside of the rails on the ties, and about the time I heard the voice, he was in the act of stepping across the rail on the track, and it was something like about a minute after I heard the voice before the car came on to him. — 542 — I saw tlie car strike him and saw the movements he made after the car struck him, from the north side of the track where I was. I saw him roll down the embankment after being thrown forward a tie or two. He didn’t stop when he was thrown forward, but rolled on down the bank. I saw this under the car. After the car passed I didn’t look and notice whether there was a man on the car or not. I heard the voice — it said ‘look out.’ I went around aixd picked Murphy up, and asked him if he was hurt. lie said, ‘ gxiess not much.’ But afterwards, when I straightened him up, he said he Svas hurt a good deal, and that he was always afraid of that place since the road was built, and had got caught at last.’ The embankment at the point where we got on was ten or fifteen feet high, but not so high at the point where he was struck. Murphy’s house is right between the two railroads.” This is the exact language of ¥m. Ragan who is the plaintiff’s first and principal witness. We copy it, because it is a very intelligent account of the time, place and manner of the accident. Murphy died in a few hours after receiving the injury. It is further shown that Murphy had often used this embankment as a footway, and that many others had also used it, more or less; that this use was known, to some extent, by the defendant’s employes, and that the embankment was narrow, so that walking outside of the rails was not convenient. 1. evidbnob : railroads: negligence. In the progress of the trial, the plaintiff was permitted, against defendant’s objections, to ask witnesses whether the deceased and the neighbors in that vicinity and ° the public generally, were m the habit of using the track between Murphy’s house and the depot, including the place where the accident happened, as a footway; and, ■also, whether the employes of the defendant were about there when the track was so used. These various questions were answered in the affirmative, and thereon, the court, at the instance of the plaintiff, gave the following, and other kindred instructions: “If you find from the evidence that the deceased had for a considerable time prior to the accident, been accustomed to walk over and- upon the track of the railroad company, at and near the place where the accident occurred, by — 543 — the acquiescence of the company, then the deceased was not a trespasser upon the track, and such permission may be implied if deceased was long in the habit of so walking over the track, with the knowledge of the company, or its employes in charge of that part of the road, without objection on their part — and it is for you to determine from all the facts in evidence before you whether or not the deceased had such implied permission.’-’ The defendant duly excepted to this evidence and these instructions, and now assigns errors thereon. In our view there was no error in these rulings by the circuit court. If the deceased was a trespasser upon the track of the defendant, this fact would not excuse the killing, if it was the result of negligence by the defendant’s employes and without negligence by the deceased. Nor, if the deceased was upon the track by the permission of the defendant, would it be liable for the death, unless it was caused by the like negligence of the employes of defendant. The only effect either fact could have in the determination of the case by the jury, would be upon the facts constituting the measure of diligence required. In either case the measure would be ordinary diligence. But the facts which would be sufficient to constitute ordinary diligence as against a trespasser, might not establish ordinary diligence as against a person properly there by permission. In other words, ordinary care would stimulate to greater watchfulness against injiiry to persons who might lawfully be upon the track, than it would if no person could lawfully be there, and this, because every person may presume that every other person will obey the law. Ordinary diligence is no fixed and unalterable standard of care. It is always to be determined by the facts and circumstances of each particular case; and is as variable as the cases. To run an engine, with great speed, through a street crowded with people, would be gross negligence, but to run it with that speed in the country, upon a fenced track, with no crossings, would be ordinary care. So, on the other hand, if the deceased had knowledge of the manner in which the defendant used the track at that place, which could hardly be doubted under .the facts proved, it would — 544 — require greater watchfulness by him to constitute ordinary care on his part than if the track was not thus used.' Erom these views it is sufficiently manifest that the circuit court did not err in admitting the evidence complained of, because it tended to establish facts proper for the consideration óf the jury in finding the ultimate fact of ordinary care; and the instructions were proper in directing the attention of th^ jury to such facts. The same would also be true as to the evidence respecting the condition of the alley and of the railroad crossing in it. 3 practice-instructions, II. The eighteenth instruction given by the court, at the instance of plaintiff, is as follows: “ If you find from the evidence that the deceased was upon a public alley where the railroad crosses it at the time the car struck him and inflicted the injury from which he died, then the court instructs you that at such place he had a right to be without permission of the railroad company, etc.,” * * * Each party introduced a plat of locus in quo, and by both plats it clearly appeared that the injury did not occur at the alley crossing. The testimony of all' the witnesses also established this fact, and there was no conflict thereon. Eor this reason, if for no other, the giving of the part of the instruction above quoted was error, and it would tend to mislead the jury. The twenty-fourth instruction given is erroneous for the same reason. 4. railroads: contributory negligence, III. The court, at the plaintiff’s request, also gave this instruction: 8. “If you find from the evidence that the employes of the railroad company in-cliarge of the A. J . A ~ ° car m question, saw the deceased on the railroad, when the car was approaching him, and that they could, by the use of reasonable care and prudence, have avoided the accident, either by slacking the speed or stopping the car, or by other reasonable means, and failed to do so, and that the accident occurred from such failure on their part, then you will find for the plaintiff.” This instruction is clearly erroneous, and for this if for no other reason: It leaves wholly out of view the question of contributory negligence by the deceased; and under it the jury would be bound to find for — 545 — the plaintiff, although they might also find that the deceased, by his negligence, contributed directly to the accident. There was no other instruction given which would tend to cure this error. The twentieth instruction given is also liable to the same objection, and so is the latter part of the nineteenth. • IY. At the instance of the defendant, the court gave to the jury this instruction: “If the jury believe from the evidence that defendant was in the custom of handling its trains and switching its cars in the manner alleged by plaintiff, and that deceased was aware of and familiar with this habit and custom, and that he .went upon defendant’s railway knowing of this custom, and when struck by defendant’s car was walking along defendant’s private right of way, then you are instructed that deceased was there at his own peril, and bound to exercise the utmost care and prudence; and if you find from the evidence that, while walking on defendant’s track, he met an engine and car passing up the grade and afterwards saw the engine pass back without the car, and that he continued, after this happened, in such proximity to the track as to be in reach of a car moving along thetrack without looking to see whether a car was approaching, and that by looking he could have seen the approach of such car, then such acts on his part, taken in connection with his knowledge of defendant’s custom, would be negligence on his part; and in determining his knowledge of such custom, you may consider his residence in proximity to the track, his declarations proved on this trial, and any other fact tending to show such knowledge.” It is now insisted that the verdict is contrary to the evidence and this instruction. Since the judgment must be reversed upon other grounds, it may perhaps be as well to pass this question without discussion; and yet it may not be improper to quote, as expressive of our views here, the language of a former Chief Justice of this court in concluding the opinion in the case of The State v. Collins, 20 Iowa, 85, that “judging from the record before us, and wishing to avoid any expression which would prejudice the plaintiff’s case on a re-trial, we deem it a marvel how the jury could say that the” facts stated in the instruction were not fully proved. — 546 — 5. PRACTICE : appeal: insfcuction. We have not reviewed the instructions seriati/m. Indeed we could not, for there are forty-four in all — twenty-seven were given on the request of the plaintiff, and n , seventeen on the request oi the defendant, and , . , „ , the}^ cover eighteen closely printed pages oi the abstract. Each class, about equally, evinces the bias and coloring of the interest which produced it. If the jury were not confused and misled by them, another marvel would be added to this case. They should have been subjected to the mental alembic of the judge, and materially reduced and purified, and moulded to the facts of the case. The practice of giving so many instructions is a serious evil, and it often tends to defeat justice and the right, and always imperils them. Reversed.