Chicago, RI & PR Co. v. Lovejoy

• Decision Date: 08 July 1953
• Docket Number: 14628,14629.,No. 14627,14627
• Citation: 206 F.2d 77
• Parties: CHICAGO, R. I. & P. R. CO. v. LOVEJOY. CHICAGO, R. I. & P. R. CO. v. HOME TRUST & SAVINGS BANK OF OSAGE, IOWA. LOVEJOY v. CHICAGO, R. I. & P. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

206 F.2d 77 (1953)

CHICAGO, R. I. & P. R. CO. v. LOVEJOY.

CHICAGO, R. I. & P. R. CO. v. HOME TRUST & SAVINGS BANK OF OSAGE, IOWA.

LOVEJOY v. CHICAGO, R. I. & P. R. CO.

Nos. 14627, 14628, 14629.

United States Court of Appeals Eighth Circuit.

July 8, 1953.

B. A. Webster, Jr., Des Moines, Iowa (R. L. Read and A. B. Howland, Des Moines, Iowa, on the brief), for Chicago, R. I. & P. R. Co.

Don W. Burington, Mason City, Iowa (Frank Elwood, Cresco, Iowa, and Wm. H. Salisbury, Osage, Iowa, on the brief), for Ralph G. Lovejoy, as Administrator of the Estates of Albert W. Lovejoy, Deceased, and Mary Josephine Lovejoy, Deceased, and Home Trust & Savings Bank of Osage, Iowa, as Guardian of the Property of Robert Lovejoy, a Minor.

Before GARDNER, Chief Judge, and JOHNSEN and COLLET, Circuit Judges.

JOHNSEN, Circuit Judge.

An automobile truck, driven by its owner and containing his wife and their 9-year old son as guests, collided with a passenger train, at a highway crossing, about two miles north of Mason City, in the State of Iowa. The father and the mother were killed, and the boy was injured.

The personal representatives of the two decedents' estates and the guardian for the minor brought separate suits against the Railroad, under Iowa law, for damages. The cases were tried together, before a jury. The court submitted the action for the mother's death and the action for the child's injuries to the jury, and it returned a verdict in each case for the plaintiff. In the action for the driver's death, the court directed the jury to return a verdict for the defendant.

The Railroad has appealed from the judgments in the mother's case and the son's case, and the personal representative has appealed from the judgment in the driver's case.

The sole question on the Railroad's appeals is whether there was evidence of negligence on its part sufficient under Iowa law to entitle these two cases to go to the jury on the charges which the court submitted. The Railroad had made a motion generally for a directed verdict in each case at the close of all the evidence, and, upon the court's denial of this motion, it sought to have each specification of negligence charged in the complaint separately withdrawn from the jury's consideration. The court permitted the cases to go to the jury upon two of the specifications or charges only, namely, that the whistle of the engine had not been sounded and that its bell had not been rung, in accordance with the requirements of Code of Iowa, 1950, I.C.A., § 478.19.

That statutory section provides: "A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed; * * * and the company shall be liable for all damages which shall be sustained by any person by reason of such neglect."

The court viewed the evidence which the plaintiffs had adduced as containing sufficient probative substance to be capable of supporting a finding by the jury that the whistle of the engine had not in fact been sounded or its bell rung, as required by the statute, and instructed that, if the jury found that the Railroad had failed to observe either of these provisions of law and that such failure had been a proximate cause of the collision, then it should return a verdict for the plaintiff in the amount of any damages established. The Railroad contends that the evidence was, under the standard of Iowa law, without sufficient basis for allowing a jury to consider whether there had been a violation of the statute in either respect.

Iowa law regards testimony by witnesses that they did not hear the whistle or the bell of a train as not affording a sufficient basis for the making of a finding by a jury that the whistle was not sounded or the bell was not rung, unless the court is able to say, from the witnesses' own testimony or on the circumstances otherwise shown, that their position and attitude were such as reasonably to give rise to a probability that these things would have been heard by them in the particular situation had they been done. See Hoffard v. Illinois Central Ry. Co., 138 Iowa 543, 110 N.W. 446, 449, 16 L.R.A.,N.S., 797; Morgan v. Iowa Central Ry. Co., 151 Iowa 211, 130 N.W. 1058, 1059; Hines v. Chicago, M. & St. P. Ry. Co., 196 Iowa 109, 194 N.W. 188, 190; Anderson v. United States R. R. Administration, 203 Iowa 715, 211 N.W. 872, 874; Chilcote v. Chicago & N. W. R. Co., 206 Iowa 1093, 221 N.W. 771, 773; Mann v. Des Moines Ry. Co., 232 Iowa 1049, 7 N.W.2d 45, 57. It is, of course, knowledge, not lack of knowledge, that is the basis of a witness's right to persuade a jury, and the probability which the court must be satisfied exists in such a case is merely the legal standard of certainty necessary to be met for practicably insuring that a witness is testifying from sensor knowledge and not the lack of it. Quite frequently, the conscientious witness will himself be perplexed and bothered, to the point of reluctance on the stand, by just why he has come to have the impression and conviction that he does in the particular situation.

To establish their charge that the whistle of the train had not been used to give the required crossing-warning, the plaintiffs called seven witnesses to the stand. Four of these were youths of high school age, who were engaged in playing pinochle with each other in a house located approximately 100 to 150 feet from the crossing. The effect of their testimony was simply that their attention had not at all been attracted until the impact occurred and that none of them recalled having heard a previous whistle. It was not even attempted to be shown that they generally did hear the whistle of trains approaching the crossing. One of them frankly characterized the situation, by stating that, for his own part, he had in the past, when he had been outside the house, watched trains go by the crossing and on some of these occasions he had heard their whistle and on others he had not, but that "there are so many trains, they don't bother me any more."

The injured boy also testified that "I did not hear any whistle blow on the train" but further said that he was sitting between his father and his mother in the truck, was engaged in reading a comic book at the time, did not pay any attention to the road or anything along it, and had had no thought in any way that they were approaching a railroad crossing.

Another witness — a woman, who lived about 900 feet from the crossing and was engaged in baking cookies at the time — testified that she was able ordinarily to hear the whistle of approaching trains plainly inside the house and that on the occasion of the accident she had not heard any whistle. But her attitude and attention at the time were shown to have been such that she had not even heard the alarm blasts, which undisputedly had been sounded just as or after the collision occurred, and she was not aware that anything had happened until she subsequently was informed by other persons. She stated that she had heard some kind of a noise but her impression then had been that it came from her oven.

The testimony of the seventh witness, however, was of a stronger nature. He was a dairy farmer, who lived about 800 feet from the crossing, and who was sitting in his living room when the accident occurred. He had been looking out the window, down the road, toward the crossing. He had seen the truck go by and watched it until just before it reached the crossing, when he had turned his head away from the window. He heard the crash of the collision and three or four sharp blasts of the whistle practically contemporaneously with it. These alarm blasts he had heard very clearly but he had not heard any previous soundings of the whistle. He ordinarily paid attention to this particular train, which was a "streamliner" with a diesel engine and an air whistle, and which thus still had a novelty of attraction for him.

The witness's testimony was such, we think, as fairly entitled it to be held that his position and attitude reasonably gave rise to a probability that he would have heard the whistle if it had been previously sounded, and that what he said was therefore capable of being found by a jury to amount to sensory knowledge. While the testimony of the other six witnesses would not of itself seem sufficiently strong to provide a legal basis, within the rule stated above, for a finding that the whistle was not sounded as required by statute, the testimony of the seventh witness, as we have said, was possessed of a sufficient probative basis for finding sensory knowledge, to warrant the court in submitting the question to the jury, on the whole situation, of whether there had been a failure so to sound the whistle.

As to the charge that the bell had not been rung as required by the statute, plaintiffs made interrogation of...