Lang v. Holiday Creek R. & Coal Mining Co.

Day, J. 1. negligence: exercise of the senses. I. The evidence is very clear, and, as we understand it, without any conflict, that from the point where the accident occurred, in the direction that the train approached, the view is clear and unobstructed for a distance of fifteen hundred and twenty-three feet. The court, at the instance of the defendant, instructed the jury as follows : “If you find from the evidence that deceased could have seen the approaching train by looking in the direction of it before he was struck, and in time to have avoided the collision, and omitted to do so, such omission was negligence, and you should find for the defendant; and the burden of proving that he did so look is upon the plaintiffand further: “The plaintiff must show that deceased was using ordinary care, and that he did not, by his own negligence, contribute to the accident; and ordinary care requires that persons walking upon the railroad track shall use their ordinary senses, and they should look out for trains or engines approaching from behind. ” That the burden of proof is upon the plaintiff to show, either from direct proof or from circumstances, that the injured party did not by his own negligence contribute to the injury, see the following authorities: Patterson v. The B. & M. R. R. Co., 38 Iowa, 279; Muldowney v. The Illinois Central R. Co., 32 Iowa, 176; Spencer v. Illinois Central R. Co., 29 Id., 55; Baird v. Morford, Id., 531; Reynolds v. Hindman, 32 Id., 146; Greenleaf v. Illinois Central R. Co., 29 Id., 14 (46); Hoben v. The B. & M. R. R. Co., 20 Id., 562. That it is the duty of one coming upon a railroad track to employ the senses of seeing and hearing to ascertain whether [473] a train is approaching, and that a neglect to do so constitutes? negligence which will defeat a recovery, see Dodge v. B. C. R. & M. R. Co., 34 Iowa, 276; Benton v. The Central Railroad of Iowa, 42 Iowa, 192, and authorities cited. Before the .jury were authorized to find a general verdict against the defendant they should have been able to find from positive testimony, or from the circumstances proved, that the deceased looked or listened for the approaching train, and perhaps that he did both. This is a material fact necessary to be agreed upon in order that the general verdict may be maintained. 'The jury reported that as to this fact they disagreed. Their ¡general verdict was inconsistent with this special finding, unless the case falls within the exception which we proceed to consider in the next division of this opinion. II. An exception to the rule that there can be no recovery .for ijn injury to which the injured party contributed by his negligence is that the defendant can not escape liability for an act done after it discovered the negligence, if it could then have avoided the injury by the exercise of reasonable care. Morris v. The C. B. & Q. R. Co., 45 Iowa, 29, and cases cited. There is no evidence in this case that the agents of the defendant in charge of the train knew that deceased was on the railway track. The jury disagreed upon the question whether the persons upon the train, by the exercise of ordinary care, could have seen the deceased in time to have avoided the injury. This case does not, therefore, fall within the exception above named. 2.-: railroad: sign a crossing. III. The injury to the deceased occurred at or near a highway crossing, at which the defendant had not erected a sign, as prescribed in section 1288 of the Code. It is claimed by the appellee that, under this section, it is only necessary for the plaintiff to prove such neglect, and that the absence of contributory negligence on the part •of the deceased need not be shown. This statute simply renders the railroad company liable for damages sustained by .reason of the refusal or neglect to erect a sign. It is appar [474] ent that it is intended as. a warning to and for the protection, of persons about to cross the railway track. In this case the deceased entered upon the railroad track a long distance from the highway crossing, and he was walking along the track lengthwise when he sustained the injury. It cannot be claimed that this damage was sustained by reason of the failure to erect a sign. We think the order of the court setting aside the general verdict, and granting a new trial, should have been allowed to stand. IY. The defendant moved the court upon the whole record that the judgment be entered in favor of defendant. This motion was properly overruled. The court, upon the record disclosed, could only set aside the general verdict, and grant a new trial. Other questions have been argued which it is. not necessary to consider. REVERSED.