Bourrett v. Chicago & Northwestern Railway Co.

Sherwtn, C. J.

I. Bordering on the Missouri river, between Pierce and Douglas, south of Second street, in Sioux City, is the baseball park. Large numbers of people, varying from a few hundred to several thousand, attend the games. In going and returning they pass along Pierce and Douglas streets, and freely over the ten or more railroad tracks, running east and west immediately north of the park, between that and Second street. These are switching tracks, save a main track of the Chicago, Milwaukee & St. Paul Railroad Company, and possibly another of defendant. The entrance to the park is from Douglas street near the northwest corner. Foul balls frequently passed over the inclosure of the park into the street or on the track space, and the boy who returned one of these balls was given as compensation for the service admission -to 'see the game being played. In the afternoon of July 25, 1905, plaintiff, who was then nearly sixteen years old, and one Soelsberg, some two years older, were at the fence on the west side of Douglas street, across from the park, with -a, view of gaining admission in this way. As a ball passed over, plaintiff started for it, running a little east of north, and did not stop until he had “kind of stumbled” at the track, caught himself before falling, and as he raised saw a train of defendant on him, coming from the west. He grabbed the iron on the east end of the east car, and held o'n until it had moved to a point one hundred and seventy feet east of Douglas street, when he fell off and was injured.

T‘ Mgifgence: duty to warn. The train was being backed at a speed estimated at six to ten miles an hour, without warning of its approach by sounding the bell or otherwise, and without keeping a lookout, so that there is no serious controversy but that a jury might well have found chargeable with negligence. See Booth v. Railway Company, 126 Iowa, 8.

contributory negligence» But it is equally clear that the plaintiff was guilty of contributory negligence. As tbe ball flew over, he started for it on a fast run toward the railroad tracks. True, he testified that there were “oars standing west of where those cars came 0 from,” and but for this he would have seen; but he knew that these were switching tracks, and must have known that, even though cars were standing on one track, other oars might be moved on other tracks. Moreover, it is not clear how cars “west of where the train came from” could have obstructed his view of cars moving eastward from where those seen were standing. Again, he testified that before he got to the car he was thinking of the ball and not expecting a train, 'and that when within five feet from the track on which the train was moving he glanced west and did not see it; that a box car standing just west of the track prevented him from seeing it; but he admitted in cross-examination that this oar was west of Douglas street, and did not then interfere with his vision, and that there was nothing to prevent him from seeing the train at that -time, had he looked. Manifestly the plaintiff recklessly ■ ran upon the track, without ascertaining in any adequate manner whether cars might be anticipated over the crossing. There were ten tracks, used mostly for switching purposes, as he well knew, and the fact, if such it was, that cars were standing thirty feet west of Douglass street furnished no ground for supposing others might not be moved on some of the other tracks. But it is argued that his attention was distracted by the ball. Doubtless this is so; but the danger of moving trains was perfectly apparent to him before starting for the ball, and that he was attracted by it into a place of danger will not exonerate him from the charge of negligence. The company was in no sense responsible for the passage of the ball, and it was the duty of plaintiff, before following it over the tracks to look or listen for approaching trains 'at some pointy where he might reasonably ascertain whether any were coining toward the crossing. This he did not do. Though of immature years, the record leaves no doubt as to his capacity of comprehending the danger. Masser v. Railway, 68 Iowa, 602; Merryman v. Raihvay, 85 Iowa, 638; Carson v. Railway, 96 Iowa, 583. Before going on the track, even though in pursuit of a ball, he must be held bound to the exercise of reasonable precaution for his own safety. Yeager v. Railway Co., 94 Iowa, 46; Hinken v. Railway Co., 97 Iowa, 608; Payne v. Railway Co., 108 Iowa, 188; Crawford v. Railway Co., 109 Iowa, 433.

3 Same-concur-' gence?eiast ci?ar chance. II. The appellant contends that the defendants are liable, notwithstanding his own negligence, and bases such claim on the following propositions, stated practically in ^is own language: “It was the duty of the company, under the circumstances and evi¿ence in this case, to keep a constant lookout, and having failed so to do when a proper lookout would have prevented the injuries . . . the company is liable.” “Defendant is liable because it could have and should have prevented the injuries. . . . The defendant can not escape liability by reason of the fact that appellant exposed himself to danger, for the defendant was guilty of negligence in not discovering the plaintiff as he caught hold of the oar on ’the Douglas street crossing, and its negligence continued after the exposed condition, . . . and therefore became the proximate cause of the injuries.” “To make defendant liable it was not necessary that the employees of the defendant . . . actually discovered” ■the plaintiff’s “dangerous position, for the defendant is liable where the danger was or should have been discovered by the use of ordinary care and prudence.”

It may be conceded, for the purposes of our present discussion, that Douglas street was an open and well-recognized street, and that the defendant company was negligent in not keeping a lookout at its crossing thereof. But if that be 'true the defendant is not liable for its negligence preceding the collision of the plaintiff with its train, - because the negligence of both was at least concurrent up to that point of time. The appellant does not contend that any of the defendant’s employees in charge of the train actually knew of his peril; nor is it claimed that such employees ought to have discovered the peril. The contention is that the defendant should have placed a lookout on the back end of the train, and that he ought to have known the plaintiff’s peril. In other words, from whatever point considered, the gist of the appellant’s dlaim is that the defendant was negligent in not having a lookout on the rear end of the train from the point of oollision to the point of injury. And from such- premise it. is argued that the defendant is liable, for the reason that it had the last fair chance to prevent injury to the plaintiff, notwithstanding his' own negligence in placing himself in a positron of peril. We are of the opinion that the doctrine of last chance can not be applied to the facts presented here, without overruling a large number of our own decisions, and without establishing an unjust rule. It must be kept in mind that up to the very moment of the collision both parties were concurrently negligent, and that the defendant oan not be held liable for its negligence preceding that moment. If it be conceded that the negligence of the plaintiff ceased with the collision, it must be said that the negligence of both culminated at that time. If the negligence of the plaintiff culminated with the collision, because he was thereafter unable to extricate himself from his dangerous position, we know of no sound reason for holding that the defendant is liable, because it did not have a lookout from the point of the collision to the point of actual injury, for it was as helpless to then discover the plaintiff’s peril as the plaintiff was helpless to escape from it. In other words, the defendant’s original negligence in not having a lookout left it as helpless to avoid the injury as did the original negligence of the plaintiff render him helpless to extricate himself from his perilous position.

The doctrine of last chance is founded on actual knowledge of the plaintiff’s negligence, and this court has-consistently so held in all cases where the facts were similar to the facts presented here, and such holding has been uniform in nontrespass as well as in trespass cases. Morris v. Railway Co., 45 Iowa, 29; Romick v. Railway Co., 62 Iowa, 169; Newman v. Railway Co., 80 Iowa, 679; Keefe v. Railway Co., 92 Iowa, 183, where it was said: “But when the negligent act whidh causes an injury is done after the negligence of the injured party is known to the other party, and the injury could have been avoided by the exercise of reasonable care on his part, there is an exception to the general rule, and the contributory negligence of the injured party will not defeat a recovery. This exception depends upon the failure of the person who is sought to be made liable for the injury to use reasonable care to avoid it, after the negligence of the other party is known. It is not sufficient that means of knowledge were available, and not used, unless in an exceptional case. To hold the defendant liable for the failure of its employees to' use due care to ascertain the danger which Keefe was in, without regard to his negligence, is to make the defendant absolutely liable for its failure to exercise due care, 'and to ignore the doctrine of contributory negligence. The care necessary to have discovered the presence of Keefe on the track was only a part of that which was due from the defendant to warn him of his danger, and to nvoid injuring .him. It can not be regarded as a separate and distinct duty;” Brown v. Railway Co., 92 Iowa, 413; Orr v. City Railway, 94 Iowa, 427, where this language was used in the opinion: “It is settled law in this state that plaintiff’s negligence will not enable defendant to escape liability, if the act which caused the injury was done by defendant after it discovered the plaintiff’s negligence, and if the defendant could have avoided the injury in the exercise of reasonable care. It seems to us that this instruction is' in strict accord with Davies v. Mann, and the other authorities cited. It does no more than hold defendant responsible for the failure of its employees to use ordinary care after they saw plaintiff upon the track, and in a position of peril.”

And in Ferguson v. Railway Co., 100 Iowa, 741, it was said: .“We do not mean to be understood as holding that if the' persons in charge of the engine failed to exercise ordinary care in stopping it .after they knew that plaintiff had missed his hold, or had slipped and fallen, that plaintiff’s contributory negligence would prevent his recovery. Such is not the case we are now considering. We have in mind a case where the engineer or fireman, or both, failed to keep a proper lookout, and, by reason thereof, ran down a person to whom they owed the duty of watchfulness to avoid injuring him. Applying the facts disclosed by this record to such a supposed case, it will be seen that the negligence of the defendant’s employees (conceding them to have been negligent in this resepct, for the purposes of the case), was not the sole cause of the injury. But for plaintiff’s concurring and cooperating fault, the accident would not have happened.”

In Purcell v. Railway Co., 117 Iowa, 667, Mr. Justice Ladd, speaking for the court, said: “There was evidence, then, from Which the jury could have concluded that the engineer saw Hunt on the bridge and in a place of peril, in time to have stopped the train and avoided the injury. Of course, it was not enough that he ought to have seen. It must appear that he actually saw or knew that he was in peril long enough before the engine reached him, to have enabled the employee to stop it before striking deceased from the track.” Barry v. Railway Co., 119 Iowa, 64; Oliver v. Railroad Co., 122 Iowa, 220, and Dale v. Coal Co., 131 Iowa, 71, announce or follow the rule, as does also Bruggeman v. Railway Company, 147 Iowa, 187. It will serve no useful purpose to cite additional authority on the point under consideration; it is the rule of our own decisions, and we think it right. The conclusion reached herein disposes of the appeal. The judgment is affinned.