Chicago, Rock Island & Pacific Railroad Co. v. Breckenridge, 17571.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit
• Citation: 333 F.2d 990
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Appellant, v. Coleen J. BRECKENRIDGE, Administratrix of the Estate of Edward A. Breckenridge, Deceased, Appellee.
• Docket Number: No. 17571.,17571.
• Decision Date: 14 July 1964

333 F.2d 990 (1964)

CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a Corporation, Appellant, v. Coleen J. BRECKENRIDGE, Administratrix of the Estate of Edward A. Breckenridge, Deceased, Appellee.

No. 17571.

United States Court of Appeals Eighth Circuit.

July 14, 1964.

Allen O. Perrier, Des Moines, Iowa, made argument for appellant and filed brief with B. A. Webster, Jr., Des Moines, Iowa.

Ennis McCall, Newton, Iowa, made argument for appellee and filed brief with L. L. Brierly, Newton, Iowa.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by defendant railroad from a judgment entered against it upon a jury verdict in an action by plaintiff administratrix for the wrongful death of her husband, Edward A. Breckenridge, as a result of the truck he was operating being struck by defendant's train at a railroad crossing in Colfax, Iowa, about 2:15 p.m. on December 13, 1960. The crossing was protected by an automatic signal device approved by the appropriate Iowa department, and said device, including its bell, stop sign and flashing red lights were in operation at the time of the collision. Liability is predicated upon negligence. Jurisdiction, based upon diversity of citizenship, is established.

Defendant, at the close of plaintiff's evidence and again at the close of all the evidence, made appropriate motions for directed verdict, adequately raising the points relied upon for reversal hereinafter discussed. In ruling upon the last motion, the trial court observed that the question presented was very close, that it would refrain from expressing its view, that the submission of the case to the jury would lead to a final disposition of the case and that if any error was made, it could be corrected without the necessity of a new trial. We have heretofore suggested and approved such procedure with relation to motions for directed verdict in close cases.

Within ten days after final judgment, defendant filed a Rule 50(b) motion for judgment n. o. v. or in the alternative for a new trial. Notice of such motion was not served until after the expiration of the ten days. The court overruled such motion as amended to secure an enlargement of time upon the ground that it had not been timely served and that exceptional circumstances excusing such failure were not established. The court's ruling clearly states that no view upon the merits of the motion is expressed. While defendant appealed from the ruling on the motion as well as from the judgment, no contention is here made that the court erred in denying the motion upon the ground that it was not timely served. Hence, such issue requires no consideration.

Defendant in the trial court urged that the plaintiff had failed to establish any negligence on the part of the defendant. Such issue is not raised upon this appeal. We may assume for purposes of appeal that actionable negligence on the part of the defendant is established. It is therefore unnecessary to go into the somewhat extensive, conflicting evidence relating to plaintiff's specifications of negligence. The evidence with respect to the defendant's negligence is material only to the extent that it bears upon the contributory negligence issue.

Defendant's contention that plaintiff's decedent was guilty of contributory negligence as a matter of law is based upon two propositions, to wit: (1) Mr. Breckenridge violated § 321.341, Iowa Code Annot., in failing to stop before reaching the railroad crossing in response to the automatic signal and that such conduct constitutes negligence per se and that no legal excuse is established. (2) Plaintiff has offered insufficient evidence to support a finding that Mr. Breckenridge was exercising reasonable care for his own safety.

Under Iowa law, plaintiff in an action based upon negligence has the burden of pleading and proving freedom from contributory negligence. Jenkins v. Bierschenk, 8 Cir., 333 F.2d 421; Illinois Central R. R. v. Stufflebean, 8 Cir., 270 F.2d 801, 805; Chicago, R. I. & P. R. R. v. Lovejoy, 8 Cir., 206 F.2d 77, 82; Mast v. Illinois Cent. R. R., N.D.Iowa, 79 F.Supp. 149, 159, aff'd, 8 Cir., 176 F.2d 157.

Judge Graven in Mast and this court in Mast, Lovejoy and Stufflebean deal extensively with the peculiar Iowa rule as to contributory negligence. Such cases support the following conclusions: Contributory negligence upon the part of an injured person ordinarily presents a fact issue but if there is a failure of proof on the freedom from contributory negligence issue, defendant is entitled to a directed verdict. If plaintiff is guilty of negligence which contributes in any manner in any degree directly to his injury, recovery is barred.

It is defendant's contention that plaintiff's decedent violated § 321.341, Iowa Code Annot., which reads:

"Obedience to signal of train

"Whenever any person driving a vehicle approaches a railroad grade crossing and warning is given by automatic signal or crossing gates or a flagman or otherwise of the immediate approach of a train, the driver of such vehicle shall stop within fifty feet but not less than ten feet from the nearest track of such railroad and shall not proceed until he can do so safely.

"The driver of a vehicle shall stop and remain standing and not traverse such a grade crossing when a crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a train."

In Kisling v. Thierman, 214 Iowa 911, 915, 243 N.W. 552, 554, the Supreme Court of Iowa cleared previously existing confusion in the Iowa cases with respect to the effect of a violation of the statute. The Court thus states the law to be applied:

"Statutes and ordinances such as these under discussion are a legislative prescription of a suitable precaution, or a fixing by law of the standard of care which is required under the circumstances, and it must follow that a failure to observe the standard of care thus fixed by law is negligence.

"In other words, accurately speaking, where the statute or ordinance has fixed the standard of care, the failure to observe such standard is negligence, and when in the trial of a case — the other elements being proven — it is shown that the defendant failed to observe the standard of care thus fixed, a case is made for the jury in the first instance. In such case, the defendant may offer proof excusing his failure to observe such legal standard of care. If, however, he fails to furnish proof of such legal excuse, then it is accurate to say that negligence is established as a matter of law.

"With this thought in mind and in accord with this idea, a court is warranted in saying to the jury that if the defendant failed to observe the standard of care thus fixed by statute, he is guilty of negligence, unless he has shown a legal excuse for failure to observe the requirements of the statute or ordinance, and in case he has so shown such legal excuse, he is not guilty of negligence. By the term `legal excuse\' is meant:

"1. Anything that would make it impossible to comply with the statute or ordinance.

"2. Anything over which the driver has no control which places his car in a position contrary to the provisions of the statute or ordinance.

"3. Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.

"4. Where a statute specifically provides an excuse or exception."

The Kisling ruling applies to contributory negligence. In Wachter v. McCuen, 250 Iowa 820, 825, 96 N.W.2d 597, 600, the court after reaffirming the Kisling rule, states:

"There is, of course, a further question in many cases as to whether the violation of a statute, which is negligence per se, is contributory negligence. That is to say, did the negligence contribute directly or indirectly in any degree to the accident and resulting injuries? In several cases cited by the plaintiff it was held that there was a jury question on this point; and of course we are fully cognizant of the rule that contributory negligence is ordinarily a question to be determined by the triers of fact and it is only exceptionally the court can say as a matter of law either that there was negligence of the plaintiff or that it contributed to the injury. But here we have the negligence established as a matter of law by the violation of the statute; and under the circumstances the fact that it contributed to plaintiff\'s injuries is not debatable. If he had not been passing on the right he would not have been struck; it was his violation of the statute that placed him in the position which resulted in his injuries. How much of the collision was attributable to him, which of the parties was guilty of the greater fault, is not in issue as long as the plaintiff\'s statutory violation was at least a contributing cause."

The Iowa court has consistently followed the Kisling rule except with respect to violations of § 321.298, not here involved.

The burden is upon the party charged with negligence per se to establish legal excuse. McMaster v. Hutchins, Iowa, 120 N.W.2d 509, 513; Jenkins v. Bierschenk, supra.

The reasoning underlying the Kisling rule applies to our present situation. Section 321.341 is a safety regulation prescribing the care to be exercised by motorists approaching a railroad crossing protected by an approved warning device. Such statute is found in Chapter 321 relating to "Motor Vehicles and Law of Road" and is the first of a series of thirteen consecutive sections under the title "Special Stops Required". Among such statutes are those presenting the more common situation with respect to requiring motorist to stop before entering a through highway.

In Chicago, B. & Q. Ry. v. Ruan Transp. Corp., 8 Cir., 171 F.2d 781, an Iowa case involving a collision of plaintiff's gas truck with a train at a highway intersection not protected by automatic signals, it was asserted that plainti...