(175 N.W.)

the lilac bushes, would touch the south rail [ 901; Merchants' T. & S. Co. v. Railway, 170 220 feet down the track, and that a straight Iowa, 378, 150 N. W. 720; Wilson v. C., M. line from a point on the south rail 175 feet & St. P. Ry. Co., 161 Iowa, 191, 142 N. W. west of the center of the crossing, touching 54. It was for the jury to say, then, wheththe north side of the lilac bushes, would er the decedents acted as ordinarily prudent reach the center of Seigel street 85 feet men would have acted under like circumsouth of the south rail. This indicates to stances in concluding, if they so did, in turnwhat extent the lilac bushes might have ob- ing up Seigel street, that they could cross structed the vision of the decedents as the the track in safety before the train would automobile turned to the north on Seigel reach the crossing. Whether, notwithstandstreet. ing that the track might have been clear to a distance of over 100 feet to the west, they were required to look again for an approaching train, was an issue for the jury to determine. That body might also have concluded, if the train had been coming at the rate of speed exacted by the ordinance, the decedents would have passed over the track in safety. We are of opinion that the issue as to whether Berger was in exercise of ordinary care was for the jury to determine.

The evidence tended to show that there was a tree 110 feet west of Seigel street, whose branches were not much, if any, higher than the barberry bushes, and Goodsell testified that from the corner of Fourth and Seigel streets the view would not be obstructed east of a line from the north side of the lilac bushes to this tree. The witness explained:

"The particular tree stands by itself pretty near straight west of the barberry bushes, a little northwest, but it would be in the same line that the track runs."

ed in the "Revised Ordinances of 1898" of

Ordinance

with amendments, is said to have been included among the Compiled Ordinances. This sufficiently indicated that these were in force at the time the ordinances were compiled. No signatures appear in the sotion 687 of the Code declares that:

[3] II. To sustain the allegation of the petition that the train was moving at a speed exceeding that fixed in the city ordinances, plaintiff offered in evidence section Burley testified that, when within 40 or 45 feet from the south rail, one would have 15 of Ordinance No. 14, as the same appearan unobstructed view for about 500 feet to the city of Tama. This was objected to, for the west, and this was confirmed by McNal- that, as is said, it contained no date, was ley. The decedents, then, as they drove along unsigned, and unauthenticated. Fourth street west, might have seen the de- No. 14 appears to have been passed and pubfendant's railway from the interlocking tow-lished August 7 and August 10, 1893, and, er for a considerable distance to the east, and as they turned north on Seigel street they might have seen the railway from the crossing for more than 100 feet west; but the jury might have found that their view was obstructed by the tree located by the engineer as about 110 feet west of Seigel street in connection with the barberry bushes to the point to which the railway might have been seen to the east of the interlocking tower as decedents drove west on Fourth street. The train might have passed the line of vision when they looked, if they so did, immediately before turning, or as they turned, north on Seigel street, and had not passed the obstructions to their view and reached where it could be seen as it approached the point of collision. Much depends on the speed of the train.

[1, 2] The jury might have found that the engine had not then reached a point of 200 feet west of the railroad crossing. Had the train been moving so that its speed did not exceed 6 miles an hour, upon reaching the west side of Seigel street the decedents could have crossed the tracks in safety. They had a right, in approaching the crossing, to assume, if the contrary did not appear, that the employés of the company would give the usual and customary warnings, and would not run at an unlawful rate of speed. Moore v. C., St. P. & K. C. Ry. Co., 102 Iowa, 595, 71 N. W. 569; Case v. C. & G. W. Ry. Co., 147 Iowa, 747, 126 N. W. 1037; Wolfe v. Railway, 166 Iowa, 506, 147 N. W.

called "Revised Ordinances of 1898." Sec

"When any city or town shall cause or has heretofore caused its ordinances to be published in book or pamphlet form, such book or pamphlet shall be received as evidence of the passage and legal publication of such ordinances, as of the dates mentioned or provided for therein, in all courts and places, without further proof. When the ordinances are so published, it shall not be necessary to publish them in the manner provided for in the preceding section."

The dates appearing, the ordinances are presumed to have been properly adopted and published, as exacted in the section preceding that quoted. Their inclusion in such a book is sufficient authentication, and therefrom it is to be presumed that they had been legally adopted. Town of Hancock v. McCarthy, 145 Iowa, 51, 123 N. W. 766.

[4] The statute quoted does not contemplate the re-enactment or the republication of the ordinances, but merely their compilation for convenient use and to simplify the Gallaher v. Jeffermethod of their proof. son, 125 Iowa, 328, 101 N. W. 124; Rocho v. Boone Electric Co., 160 Iowa, 94, 140 N. W. 193. Defects in the ordinances or in their enactment are not thereby cured. That

which may be essential to adoption-the recording of the vote and of the ordinance, signatures of the officers, publication, and the like (section 680 et seq. of the Code)are not a part of the ordinances, but relate to their passage and authentication. All the objections urged by the appellant may be sound, but none were proven, and therefore the prima facie proof of the ordinance, made out by introducing the "Revised Ordinances of 1898" and the date of the passage of Ordinance No. 14, was not overcome, and it was rightly received in evidence.

[5] III. The evidence was insufficient to carry the issue of last fair chance to the jury. The engineer testified that:

"When I got within, I should judge, a couple of hundred feet, I saw an auto go over this crossing, and when I got up closer to the crossing-I don't know, 60, 70, or 80 feet, something like that; I couldn't tell you exactly the distances-I saw another auto approaching the crossing, and I gave the alarm whistle, and at about the same time I applied the air in emergency. I gave the alarm whistle as soon as I saw the automobile that was later struck, and I applied the emergency as soon as I could, and did all I could towards stopping the train after the alarm was given. When I gave the alarm whistle, I was going between 20 and 25 miles an hour, in my best judgment."

* * *

Inquiry was made of the witness, on cross-examination, how far he could have seen the crossing and anything approaching it, had he been looking, and also with respect to tests as to how quickly a train might be stopped, though without enlisting information on the latter subject.

* *

A. Just a short distance from it, perhaps 100
feet; 150 feet; something like that. I had not
seen the automobile in which these two men were
killed up to that time.
Q. How far do
you say that engine was from the crossing when
these blasts were given? A. Well, I don't
know; somewhere around 100 or 125 feet."

Roach estimated the distance from the crossing at which the alarm was sounded at 75 feet. The testimony of the engineer that he did everything he could to stop the train when he first saw the decedents' automobile approaching the track is undisputed, save by Nellie Phillips, who swore that the brakes were not set until the collision occurred. The record is without evidence tending to show how far such a train as that in question, moving at the rate it might be found to have been moving, could be stopped, save what actually happened. It is not perceived, then, wherein defendant's employés were negligent in the management of the train, after the perilous position of decedents was discovered by them. According to the evidence, the engineer did all he could, and there was no evidence tending to show that he could have brought the train to a standstill before reaching the automobile, or have slowed it down enough to have enabled it to pass over the track. The issue ought not to have been submitted.

[6] IV. Nor does the instruction under which this issue was submitted correctly state the law. In the twenty-fourth paragraph of the charge, the court said that:

"The rule that, where one, through his own fault, puts himself in a place of danger on a railroad track, he is precluded from recovering damages for his resultant injury or death, is subject to the qualification that where the engineer has, or by the exercise of ordinary care should have, discovered the peril of the deceased or his position, and it is apparent that he cannot escape, or he, for any reason, does not make effort to do so, it becomes the duty of the engineer to use all means in his power to avoid injuring the person."

"Q. You didn't set your brakes after you sounded the whistle? A. I blew the whistle with my left hand, and before I discontinued blowing the whistle I pulled the lever around this way, the brake lever, in emergency position, and I was about 25 feet from the car when I lifted the brake into emergency. When I first saw the car, it was right on the crossing, about 20 feet, I should judge. Q. If you had seen the car before that, you would have put your brakes on before, wouldn't you? (An objection was overruled.) A. Yes; I didn't see the first car until it went over the crossing, and I didn't see this car until it came up to the crossing; almost on the crossing, when I saw it. I was looking out the front window of the cab, attending strictly to my business. Q. If you had been looking as you should for that dangerous crossing, you would have seen that? A. I was attending strictly to my business, looking out the front cab window. I saw the other car when it passed. I saw this car when it came up to the crossing, probably 10 or 12 feet; something like that; maybe 20 feet. Q. There was nothing to prevent you from seeing it for a long way up the track, if you had been look-jured party or deceased." ing? A. No, sir; I don't know if I would have seen it, looking straight ahead."

Later in the same instruction this also appears:

The fireman was asked:

"Q. Where was the engine at the time that alarm was given with reference to Seigel street?

"The general rule that by one's own negligence he is, in such a case, precluded from recovery, is subject to the qualification that where the deered, the peril of the position of the one killed, fendant has discovered, or should have discov and it is apparent that he cannot escape therefrom, or, for any reason, does not make an effort to do so, the duty becomes imperative for the defendant to use all reasonable care to avoid the injury, and, if this is not done, he becomes liable, notwithstanding the negligence of the in

The italics are ours, and are used to point out the precise error the court fell into. It is the settled doctrine of this court that, in order to render the employés of a steam railway company negligent under the doctrine

(175 N.W.)

of last fair chance, they must have actually | save that Reinig was operating the car. No seen the persons injured in such time that, by the exercise of ordinary care, they could have avoided injuring them. It is not enough that, by the exercise of ordinary care, they must have seen. It must appear from the evidence that they in fact did see or knew of their perilous position. See, among many decisions, Bourrett v. Railway, 152 Iowa, 579, 132 N. W. 973, 36 L. R. A. (N. S.) 957; Purcell v. Railway, 117 Iowa, 667, 91 N. W. 933; Dieckmann v. Railway, 163 Iowa, 13, 144 N. W. 587; Wilflin v. Railway, 176 Iowa, 643, 156 N. W. 842.

[7] V. In the seventeenth instruction the court told the jury, in substance, that if none of the witnesses observed whether Berger looked or listened for the approach of the train, then the jury might"consider the instinct of self-preservation in connection with other facts and circumstances appearing in evidence, in determining whether or not, in that respect, he exercised ordinary care for his safety when he came in the zone of danger. But if you believe that, while he was approaching said crossing in said automobile, and during the time the duty devolved upon him to look and listen for approaching trains, he was under the scrutiny of some credible witnesses, who observed the acts and conduct of said C. J. Berger at such time, then you are bound by the evidence given by such witness on such subject, and should not consider the inference that at the time covered by such testimony the said C. J. Berger was prompted in his conduct by the instinct of self-preservation, if such inference is inconsistent with the acts and conduct shown with such direct testimony."

In the twentieth instruction the jury was told that:

"If there was no eyewitness who saw or who was observing the movements of decedent, C. J. Berger, at or prior to his looking and listening, there is an inference due to the instinct of the love of life and the desire of self-preservation that the decedent was exercising care on his part at that time."

The jury was then told that this inference was not conclusive and that, in determining whether he did exercise reasonable care in keeping a lookout and listening, all the facts and circumstances in the case bearing thereon should be considered. This is a correct statement of the law, though it might well have been said that there was an eyewitness to what Berger was doing at the time of the collision.

one was able or undertook to say whether either of the decedents looked or listened, or omitted so to do, for the approach of the train. In these circumstances, the inference that decedents exercised the instinct of self-preservation in approaching the track might well be considered in connection with the other evidence adduced in ascertaining whether they exercised that vigilance in keeping a lookout and listening which the law requires of every one in approaching a railroad crossing. Merchants' Transfer & Storage Co. v. C., R. I. & P. R. Co., 170 Iowa, 378, 150 N. W. 720.

[8] VI. It appears from the evidence that Berger had broken the knuckle to the steering gear of his automobile the day before the accident, and that Mrs. Berger had telephoned to her daughter, Mrs. Reinig, that this had happened, and that her husband was about to send to Grinnell for repairs. On the following morning Mrs. Reinig said to Mrs. Berger, over the telephone, that Reinig would take Berger over to Grinnell in his car, and would come over after him. Thereupon Mrs. Berger informed her husband and told him to get ready. Shortly thereafter Reinig came with his automobile, and Berger accompanied him to Grinnell, and it was while returning that the collision occurred. The court submitted to the jury whether the decedents were engaged in a joint enterprise, such as would render Berger responsible for Reinig's conduct in operating the car, and appellant criticizes the court for so doing, by insisting that it conclusively appeared that they were engaged in a joint enterprise, and that the issue ought not to have been submitted. We concur in the contention that the issue was not for the jury, but for the reason that there was no evidence from

which the jury might have found that Berger was riding in the automobile otherwise than as a guest or as a passenger. Reinig owned the car and operated it, and there was no evidence tending to show that Berger was interested in any manner in its operation or exercise, or had the right to exercise any control over the same. See Wagner v. Kloster, 175 N. W. 840, decided at the present term of court.

[9] Whether or not they were engaged in a joint enterprise, however, was not very important, for Berger, even though a guest, was required, in the exercise of ordinary care for his own protection, to keep a vigil

One Roach, who was at work in the car-ant lookout for approaching trains, when penter shop, testified that Berger had his "head turned towards the east" when the automobile went upon the railroad crossing. While several witnesses observed the decedents driving the car west on Fourth street and up Seigel street towards the crossing, no one pretended to observe what either Berger or Reinig did prior to the collision,

about to pass over the railroad crossing. He was sitting on the front seat with the driver, and enjoyed opportunities for seeing and listening equal to those of the driver. There is no reason for exacting a less degree of care in these respects than Reinig was required to exercise. Beemer v. Railroad, 181 Iowa, 642, 162 N. W. 43.