Appeal from District Court, Story County; | ence thereto, came from the engineer and C. G. Lee, Judge. fireman.

Action at law to recover damages for the death of Earl P. Wilson, deceased, due to his being struck by a train on defendant's right of way at a highway crossing in Story county, Iowa. Defendant interposed a general denial, and on the issues joined the case went to trial to a jury, resulting in a verdict and judgment for plaintiff in the sum of $2,000. Defendant appeals. Affirmed.

Cook, Hughes & Sutherland, of Cedar Rapids, and E. H. Addison, of Nevada, Iowa, for appellant. I. W. Douglass, of Maxwell, and Edward M. McCall, of Nevada, Iowa, for appellee.

The engineer said: "I remember the night Earl Wilson was struck by the train. I was engineer; the train came through Collins, going east, at about 3:10 in the morning; it was an excursion train from Omaha as I remember. When we went over the crossing, I heard a crushing noise on the left side of the engine under the cab, and decided we must have struck something on the crossing, and so stopped. The boiler beam and cylin der and main reservoir under the cab and the steam pipe on the under side of the tank showed marks of being struck. The boiler beam stuck out 10 inches beyond the rail. There were marks on the north end of that, and marks on the cylinder on the left-hand side of the engine. The body was lying near the signpost in the highway. I noticed the horse; its right side was ripped open, and it was about 50 feet east of the boy's body."

And the fireman said: "The accident occurred at about 3:10 in the morning. As we passed over the crossing I heard the engine strike something, and we stopped. I examined the engine to see whether there were any marks of how the accident occurred. I discovered marks upon the pilot beam and main reservoir, and under the cab window. near as I can state, the marks looked as if something had struck against the post, and had been knocked up against the window, and made some scratches on the pane.

DEEMER, J. Deceased was a young unmarried man about 19 years of age at the time of his demise. He was killed by a train operated on defendant's line of railway at a highway crossing in Story county, Iowa, at about 3 o'clock a. m. July, 1910. This crossing was about two miles and one-fourth, east of the town of Collins, in said county. Deceased had been working on a farm about two miles south of the crossing just prior to the accident. No one saw the accident, but deceased was driving a single horse to a light buggy, and was traveling eastward on a highway, which ran east and west. The train was also running a little north of east on the main line of defendant's road from Omaha to Chicago. The railway at this point runs nearly parallel with the high-struck against the cab under the window, way, and the train, which struck the de- and there were also marks on the cylinder on ceased, was an excursion one from Omaha. the left side. His body was lying some ten Something like 80 to 100 rods west of this feet from the signpost, still in the highway, crossing, on a road running north and south, and still in the buggy." there is an overhead bridge spanning the right of way, the railway track running under the bridge.

As

It

The headlight of the engine was burning, and it is a little strange, we may here observe parenthetically if, as defendant contends, the train was in plain sight of the deceased for more than 660 feet, while he was on the highway, going east and west, that neither the engineer nor the fireman saw the deceased. On account of a curve made in the track, if there were no obstructions, the headlight of the engine must have swung around, if we are to adopt defendant's version of the affair, so that it covered the deceased and his horse for a good part of this 660 feet, and yet neither of the men in the engine saw the deceased. There is a dispute in the testimony as to whether or not the whistle was blown or the bell rung for the crossing, and these were questions for the jury.

There was also testimony from which a jury may have found that the train was running at a speed of from 50 to 55 miles per hour just prior to the collision. Appellant strenuously contends that under the record deceased was guilty of contributory negligence as a matter of law, and further assigns error on the instructions given and refused, and also upon certain rulings of the trial

a motion for a continuance or postponement of gone over the said crossing with him at about the case.

half past 8 or 9 o'clock, going over said road and over said crossing; that said Earl Wilson took her to her home some 2 or 21⁄2 miles distant from the said crossing, and that he left her at about 2 o'clock a. m. on the morning of July 24th; that when he left her he had a buggy, and was driving back with one horse attached to same, and that it was a horse that had been driven by him while she was in his company on a number of occasions, and that the horse had appeared to be a gentle and trustworthy horse, and that the said Earl Wilson had the appearance of being asleep at the time he left her, and stated that he was sleepy and intended to sleep on his way home. Affiant further says that he knows of no other persons by whom said fact can be proven, and that he believes the same to be true. [Signed] John N. Hughes. [Duly sworn to.] Upon the facts stated in the above and foregoing affidavit which is made of record in this case, the defendant asks the court to grant a continuance of this case until 1:30 o'clock this afternoon in order to produce said witness."

Thereupon the following record was made: "Mr. McCall: All that you know about it is that Mr. Glynn telephoned to you that he had telephoned to her down the road somewheres, and that is what she says, and he says that is what she says she will testify to.

2. The motion for continuance or postponement came at the close of defendant's testimony, at about 10 a. m. of the 19th day of January, 1912. Defendant had rested its case, save for one witness, and then made the following motion: "Upon the convening of the court on the morning of the 19th of January for the third day of the trial of this case the defendant calls the witness Charles Kahen for further cross-examination, and after the close of his testimony the defendant states that it has no other witness except Cora Cline; that said Cora Cline lives in Kansas City, Mo., and that her residence was not known to defendant until noon of the 18th day of January, 1912; that on Monday, the 15th day of January, and prior to the day the case was called for trial, and before the two jury cases which were tried before this case was reached for trial, the defendant began a diligent search to find the whereabouts of said witness; that the defendant telephoned to the father of said witness at Maxwell, Iowa, and was advised that said person was living at Des Moines, Iowa; that after investigation and search in Des Moines defendant learned that the said person lived in Kansas City, Mo., and at once communicated with parties in Kansas City to ascertain her whereabouts; that since this accident occurred in this case said witness had been married, and her present name was not known to defendant; that defendant at about noon January 18th located said person and secured her consent to come to Nevada, Iowa, and that she, as affiant is informed and believes, is now on her way to Nevada, and that she will reach Des Moines at about 10 or 10:20 o'clock, and will be able to leave Des Moines on the Northwestern at about 11 o'clock and reach Ames, Iowa, in time to be brought over from Ames with a team and be in the courtroom by half past 1 o'clock this afternoon; that a telephone message from Des Moines from T. F. Glynn and J. N. Hayes to affiant herein states that he has just been talking to said witnesses, who are at a station en route from Kansas City to Des Moines, and that she is coming to Des Moines on the train which will reach Des Moines at about 10 or 10:20; that the defendant has used all the means that it has had and all the diligence that it could exercise in ascertaining the whereabouts of said witness and in getting her to attend the trial of this case. Affiant further says that if said witness was present in court she would testify that she was acquainted with Earl Wilson, and had "Mr. Hughes: I don't think we could have. been keeping company with him for about I asked you last night to adjourn before one year prior to the date of the accident cross-examination; and, if I wanted to ask and his death; that she had frequently driven over the highway and crossing in controversy in this case, and upon which the said Earl Wilson was killed, in company with him, and that the night of his death she had

"Mr. Hughes: What I know about it is this: That he called up from Kansas City at noon yesterday, and I answered the phone. Mr. Glynn's brother said to me that they had located the woman, naming her, and that she would come up here if we had time to get her up here for the trial. I told Mr. Glynn to look up the time tables, and see when he could get here. He looked it up, and said that he thought he could get here by 9 o'clock or by 8:30 this morning. So I sent him on down to Des Moines to meet her there, so that there would be no question about her making any mistake as to the taking of the train. Just as the court convened, I got a telephone message from him at a station just below Des Moines, and that she was on the way on the Burlington, and that the Burlington train should be in-I am not certain whether he said 10:10 or 10:20, but in time to take the Northwestern.

"The Court: You asked me yesterday to wait until this morning to finish your case. "Mr. Hughes: Yes; I did then, but really we have not finished our case.

"The Court: We could have finished with your testimony last evening.

this witness some other questions, I could do so this morning.

"The Court: You were aware of the fact that the trains have been running very irregularly the last week.

"Mr. Hughes: No, sir; she would drive or impeach the witness by showing that over from Ames.

such that, when the signals given are con- been exercised. sidered, one attempting to use the crossing Iowa, 349 [92 N. W. 40, 96 Am. St. Rep.

[4, 5] Each of these is complained of, and it is strenuously insisted that there was no testimony to justify these instructions, and that in any event there was error in submitting the question of the speed of the engine in such a manner as that the jury might have found negligence therein. Again, it is argued that the fourth and sixth instructions, authorizing the jury to find negligence from the failure of defendant's employés to And with reference to the giving of signals give other than the statutory signals for the we said in Kinyon v. Railroad Co., 118 Iowa, crossing, were erroneous. In recent cases 349, 92 N. W. 40, 96 Am. St. Rep. 382 "The we have said the following with reference to tenor and effect of the instructions given these matters: "As has often been said, no were to impress upon the jury the thought rate of speed in a train moving in the open that, if the whistle of the engine was soundcountry is in itself negligence as to a per- ed 60 rods from the crossing, the defendant son upon a crossing, but it sometimes hap- had discharged its whole duty. This idea pens, when considered with reference to the was expressly or impliedly repeated in varicircumstances of the particular place, that ous forms throughout the charge. There are the rate of speed may be an important fac- a few cases which tend to sustain the doctor in determining whether due care has trine announced by the learned trial court

posed upon defendant to give signals upon approaching the crossing; his position and condition to hear and see the approaching trains and all other matters shown in evidence which should be considered by the ordinarily prudent person under such circumstances. And if, under all the circumstances, you believe he did exercise ordinary care, then he was not guilty of negligence. But, if from all the circumstances you do not find that he did exercise ordinary care, then he was negligent. And, if such negligence in any manner contributed to said injury, then plaintiff cannot recover in this case." This paragraph has ample support in the cases. See Case v. Railroad Co., 147 Iowa, 747, 126 N. W. 1037; Cummings v. Railroad Co., 114 Iowa, 88, 86 N. W. 40. One approaching a railway crossing undoubtedly has the right to assume that the railway company will give the usual and customary warnings, and that it will exercise the care required of it in approaching such dangerous places. Many other cases might be cited and we need but add: Moore v. Railroad Co., 102 Iowa, 595, 71 N. W. 569.

in this respect (Beisiegel v. Railroad Co., 40 | approaching said crossing to look and listen N. Y. 9; Grippin v. Same, 40 N. Y. 34); but, for approaching trains. The care required as we shall endeavor to show, it is not in of him in this respect was the care which accordance with the weight of authority. would be exercised by the ordinarily pruEven when there is no statutory regulation, dent person under such circumstances, hava railway company may be chargeable with ing in mind the character of the crossing as negligence for failing to give reasonable warn- known to him, the mode by which he was ing before running its train over a public | traveling, the difficulty, if any, to see and crossing. Shearman & Redfield, Negligence, hear the approaching train, the duty im§ 484; Artz v. Railroad Co., 34 Iowa, 153; Railroad Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Tolman v. Railroad Co., 98 N. Y. 198, 50 Am. Rep. 649; Loucks v. Railroad Co., 31 Minn. 526, 18 N. W. 651; Guggenheim v. Railroad Co., 57 Mich. 488, 24 N. W. 827; Thompson v. Railroad Co., 110 N. Y. 636, 17 N. E. 690; Harty v. Railroad Co., 42 N. Y. 468. And in such cases the place where and the distance at which reasonable care requires the warning to be given must of necessity depend upon circumstances. It is a matter of common observation that railway crossings are not all equally dangerous; varying, as they do, from the intersection of straight tracks upon the open prairie, with unobstructed view for miles in every direction, to the crossing of sharply curved tracks in deep cuts, where an extended view is impossible. It is obvious that taking one extreme it is hardly possible for a traveler upon the highway to collide with a passing train without gross negligence upon his own part, while in the other case he may quite readily be run down and injured when in the exercise of all reasonable care for his own safety. The gener- [7] 7. The ninth instruction was in this al common-law rule that care, to be reason-language: "If the track at the point of the able, must be proportioned to the danger to be avoided, applies here, as in other cases of alleged negligence; and that the rule affects, not only the traveler who ventures upon the crossing, but the railway company which operates its trains over the track. Turning to the statute, we find the provision to be that the whistle of the engine shall be sounded at least sixty rods before a crossing is reached.' The effect of this is to indicate the kind of warning which must be given, and the minimum limit within which the duty must be performed, but does not abrogate the common-law obligation which would require a warning at a greater distance if by reason of the speed of the train, or the peculiar dangers of the crossing, some earlier signal is dictated by reasonable caution." See, also, to the same effect Hart v. Railroad Co., 56 Iowa, 170, 7 N. W. 9, 9 N. W. 116, 41 Am. Rep. 93.

[6] 6. The seventh instruction is also complained of. It reads as follows: “(7) If you find that the defendant was guilty of one or more of the acts of negligence charged as specified in these instructions, and that such negligence was the cause of the injury of which plaintiff complains, you will next inquire whether or not plaintiff's intestate was guilty of contributory negligence. It

crossing or from the point of the approach thereto is obstructed, one attempting to cross the same should exercise such caution as would be used by the reasonably prudent person under like circumstances to avoid collision with a passing train by looking and listening at a point distant from the crossing from which he would, in the exercise of reasonable caution, ascertain the approach of a train and await its passing and thus avoid contact. If the said Earl Wilson heard the approaching train with which he collided, or could have heard it by the exercise of ordinary care or otherwise had knowledge that it was approaching the crossing where the accident occurred, it was his duty to stop and wait its passing, even though no whistle was sounded or bell rung, unless, acting as an ordinarily prudent man, he had reason to believe he could get past the crossing in safety. "If you find from the evidence in this case that as said Earl P. Wilson approached the crossing that he had such a view of the railroad track that, had he exercised ordinary care, he could have seen the approaching train or he could have heard such approaching train had he listened, and that, had he exercised ordinary care under all the circumstances surrounding him, he would have avoided the accident, then he