mosms 1:. cmoseo, M. ar sr. r. R. co. 29
and it is for you to say, under the evidence, whether or not said David
Whitmer exercised the vigilance and watchfulness and took the pre·
cautions which, in the exercise of ordinary care, he should have taken,
in view of the circumstances then surrounding him, in order to ascer·
tain whether or not a train was or was not then approaching, and
whether he could or could not with safety pass upon the railway track.
If you ind that he did exercise all the vigilance and watchfulness and
take all the precautions that he should have done under the circum-
stances, then upon this issue you should find for the plaintiff; but
if, under the evidence, you ind that said David Whitmer failed to A
exercise the watchfulness and vigilance and to take the precautions
which he should have done under the circumstances, and drove said
wagon upon the railway track, thereby bringing it into collision with
the train, then he was guilty of such- negligence as will defeat a re-
covery in any one of these actions,, and your verdict must be for the
defendant. To restate the legal propositions brieiiy: Unless you are
satisfied from the evidence that the collision was caused by the neg-
ligence of the company or its employes, then your verdict must be
for the defendant. If, however, you are satisfied from the evidence
that the collision was caused by the negligence of the defendant or _
its employes, then your verdict should be for the plaintiff, unless you .
are satisied from the evidence that the said David Whitmer, as the
driver in charge of said wagon, by negligence on his part, aided in
bringing about said collision, in which event your verdict must be for
the defendant, even though you find that the defendant was also
guilty of negligence.
If, then, gentlemen, under the instructions given you, as applied
to the facts as you may find them from the evidence, you find for the
defendant, you will so say by your verdict; but if you find for the
plaintiff, you will then be required to determine the amount of dam-
ages to be awarded in each one of the cases submitted to you.
The amount of damages to which plaintiff is entitled, if you find
the defendant liable, is such sum as will equal the pecuniary damage
caused to the estate of the person killed by his or her death. The
statute of Iowa, under which these actions are brought, does not permit
you to consider or to award to the plaintiff damages for the anguish
and suffering caused to the husband and father of the persons killed, or
to their other relatives. The law limits the amount to be recovered
to the pecuniary loss caused to the estate of the deceased person, and
beyond this amount you cannot go. In estimating the amount of
damages you will be required to consider each case separately.
In case No. 254, which is the one brought to recover damages for
the death of Mrs. Martha Whitmer, you will take into consideration
her age at the time of her death, and any other facts established by
the evidence which may tend to throw light upon her ability to earn
money, and, exercising your best judgment thereon, fix the damages
at such sum as you deem will fairly represent the pecuniary loss