Slaats v. Chicago Great Western Railway Co.

Givbn, -I. 1 I. On the thirtieth day of June, 1896, in the daytime, the plaintiff was riding in a two-horse wagon, being driven at the time by one Kowalski, by his permission, on Rhomberg avenue, in the city of Dubuque. At a point where the defendant’s track crosses said avenue the wagon was struck by a train consisting of two cars being pushed by an engine along the track, and plaintiff was injured, to his damage. The plaintiff charged that the ■defendant, was negligent in running said train ¿t a dangerous rate of speed; in running it' at a greater speed than six miles per hour, in violation of an ordinance of said city; in failing to give proper signals of its approach; in failing to have a person on the rear of said car to give warning of their approach to- said crossing; and in failing) to have a •flagman at said. crossing. The court withdrew from the jury the charges of speed in excess of six miles an hour as ■fixed by ordinance, the claim that the bell was not ringing, and that there was no one on the rear of the car to give warning, om the ground that there was not sufficient evidence to sustain said charges, and as to the other charges of negligence instructed as follows: “It is left for you to determine, on the question of negligence of defendant, whether, under all the facts and circumstances surrounding the accident at the time it occurred, the speed [204] of the train was high and dangerous or not, whether it went over the crossing without giving proper signals of approach, and whether, under all the facts and circumstances attending the accident, it was or was- not negligence in the defendant not to have had a flagman at the crossing.” The jury returned four special findings to the effect that neither the plaintiff nor Kowalski was guilty of negligence. It also found specially as follows: “What negligence of defendant,, if any, as charged in the petition, do you find, from the evidence, caused or contributed to the accident % Answer. Should have a flagman.” 2 II. Appellant claims that the case was, submitted, and the verdict returned, solely upon the charge that the defendant was negligent in not having a flagman at said crossing,, and then proceeds to argue that the fact alone that defendant did not have a flagman at the crossing is not of itself negligence, and that a recovery cannot be based thereon. The claim made is not well founded. The instructions left it to the jury to determine whether defendant was negligent in the rate of speed, in failing to give signals, “and whether, under all the facts and circumstances attending the accident, it was or was not negligence in the defendant not t.o have had a flagman at the crossing.” It does not follow that, because the court withdrew the-charge that the speed exceeded six miles per hour, in violation of the ordinance, the speed was not dangerous. Whether a speed of less than six miles was dangerous and negligent depends upon the attending circumstances, and it was left to the jury to determine whether the speed was negligent. That the claim that the bell was not rung was withdrawn did not withdraw the charge that proper signals were not given. There were other means of signaling the approach of the cars, and it was left to the jury to determine whether there was negligence in this respect. It does not follow, from the special finding quoted above, that the jury based its verdict solely upon the absence of a flagman, indo [205] pendently of the evidence as to speed and signals. They found that the absence of the flagman “caused or contributed to the accident,” and they might well so find because of the evidence- as to speed and signals and the other surrounding circumstances. Appellant cites McGrath v. Railroad Co., 63 N. Y. 528; Houghkirk v. President, etc., 92 N. Y. 226; Tierney v. Railway Co., 84 Iowa, 647. In the latter case the trial court “instructed the jury to determine whether ordinary care required, under all the circumstances of the •case, that the defendant should have had a flagman at the •crossing, or should have had some one upon the cars; and whether, under all the circumstances, the defendant exercised ordinary care and prudence in running said cars in the manner in which it did.” “The appellant contended that there is no statute or ordinance requiring a flagman or gates; it is not of itself negligence to omit to maintain one; and that in such case a jury is not the proper tribunal to determine whether a flagman or gates should be maintained.” This court said: “It is conceded, and such is the uniform holding, that evidence of the presence or absence of a flagman or gate is proper to be considered by the jury upon the qxiestiou of the defendant’s prudence or negligence in moving cars at the particular time and place in question. The instruction is in harmony with this rule.” This holding is directly applicable to this case, and supports our conclusion that the contention under consideration is not well founded. III. Appellant cited many authorities to the effect that the burden is on the plaintiff to show care on his part and on the part of Kowalski, to whom he had intrusted the driving of his team, and as to the degree of care that they ■were required to exercise; and discusses the evidence at length to show that they were guilty of negligence contributing to the plaintiff’s injuries. The law on these subjects is familiar, 'undisputed, and was properly given-to the jury, and it is unnecessary that we refer to the authorities cited. [206] Upon the facts there is certainly room for discussion as to whether plaintiff and Kowalski exercised the care required of them in going upon the crossing when and as they did. It will serve no good purpose to here set out or discuss this evidence. It is sufficient to say that, after a careful reading thereof, we are led to the conclusion that the finding of the jury on the issues as to defendant’s negligence and as to contributory negligence has such support in the evidence that, under the familiar rule in such cases, we are not warranted in disturbing the verdict for want of evidence. 3 4 IY. Appellant complains of two rulings on evidence. A witness, having testified that he “hollered” to the driver, “Hold on; you can’t make that crossing!” was asked, “What tone of voice did you speak to him?” to which he answered, “Oh, I hollered pretty loud, so that anybody could bear it.” On motion, the court struck out the last six words of the answer, and of this appellant complains. These words might well have been permitted to remain, as they were but another way of indicating the tone of voice in which the witness had called to the driver; yet the i*uling was without prejudice, as the fact remained that he “hollered pretty loud.” A witness testified that he was on the first box car approaching the crossing, that he saw the driver, and that he appeared to be looking at the witness. Witness was then asked. “Well, state whether the train was in plain view of that man in the wagon,” to which he answered, “Well, he was in plain view, — him and the wagon. I could see them plain, — the whole wagon and him; and he certainly could have seen the tops of the cars.” On motion, the court struck out the last eleven words of the answer. This ruling was without prejudice, for surely, if the witness could see from the top of the car, the whole of the wagon and driver in plain view, the top of the car must have been in view of the driver. ' What we have said fully disposes of all the questions urged in argu [207] ment, and leads us to the conclusion that the judgment of the district court should be'affirmed. Granger, O. J., not sitting.