Anderson v. United States Railroad Administration

• Citation: 211 N.W. 872,203 Iowa 715
• Decision Date: 11 January 1927
• Docket Number: 37258
• Parties: OSCAR ANDERSON, Appellee, v. UNITED STATES RAILROAD ADMINISTRATION et al., Appellants
• Court: United States State Supreme Court of Iowa

211 N.W. 872

203 Iowa 715

OSCAR ANDERSON, Appellee, v. UNITED STATES RAILROAD ADMINISTRATION et al., Appellants

No. 37258

Supreme Court of Iowa, Des Moines

January 11, 1927

REHEARING DENIED APRIL 7, 1927.

Appeal from Benton District Court.--B. F. CUMMINGS, Judge.

Action at law to recover for the damage to an automobile struck by defendant's train. From a judgment for the plaintiff the defendants appeal.

Affirmed.

G. W Burnham, J. G. Gamble, and A. B. Howland, for appellants.

L. J Kirkland, for appellee.

VERMILION, J. EVANS, C. J., and STEVENS and FAVILLE, JJ., concur.

OPINION

VERMILION, J.

This case is before us for the third time. The former opinions will be found in 193 Iowa 1041 and 197 Iowa 1. The action is for the damage to appellee's automobile occasioned by its being struck by appellant's train. It is unnecessary to repeat in detail the circumstances of the collision or the description of the crossing and surroundings, as set out in the former opinions.

I. It is urged that the evidence is insufficient to sustain the verdict, in that it should be held, as a matter of law, that the driver of the automobile, appellee's wife, was guilty of contributory negligence. This claim is bottomed upon the fact that she did not stop the automobile, but attempted to pass in front of the train.

The main-line track, upon which the train was moving, was the third that the driver was required to cross. There was testimony that on the second track there were standing cars, one of which extended into the public highway to about the middle of the crossing planks. It is conceded that, as the automobile approached the crossing, the driver's view of the main track in the direction from which the train came was obstructed by buildings and the standing cars until she passed the end of the car standing partially in the highway. The driver was familiar with the crossing and its surroundings, and had observed the standing cars when she passed, a short time before the accident. She knew that the train was due and had not passed. The automobile was an open one, with the top up and no side curtains. There was testimony that no signals by bell or whistle were given from the approaching train; that the speed of the automobile had been reduced from about 15 to about 10 miles per hour at the crossing; and that it was running quietly. The driver testified that she looked as best she could, and listened for the train, but did not hear it, or any signal of its approach; that she looked when she passed the end of the car, at the first opportunity, when she could see in that direction, and then saw the train and a man trying to warn her by signals and voice. There was a conflict in the testimony as to where this man stood, and whether the driver could have seen him before she passed the standing car. She attempted to cross the track in front of the train, but the automobile was struck back of the center. The distance between the nearest rails of the main track and the track on which the cars stood was 20 feet. The automobile was about 15 feet long, and it was a little over 8 feet from the front bumper to the driver's seat. It is a matter of common observation that the sides of railroad cars and engines extend beyond the track rails. The jury would have been warranted in finding that, when the driver of the automobile first saw, or could have seen, the train, as she passed the end of the standing car, the front of the automobile was then only 8 or 10 feet from a point where it would be struck by a passing train on the main track. There was testimony that the automobile, at a speed of 10 miles per hour, could have been stopped by a person not under excitement in approximately 10 feet.

It is well settled that a traveler is not required, as a matter of law, to stop before going upon a railway crossing. Case v. Chicago G. W. R. Co., 147 Iowa 747, 126 N.W. 1037; Gray v. Chicago, R. I. & P. R. Co., 160 Iowa 1, 139 N.W. 934. The driver had a right to rely to some extent upon the giving of proper signals by those operating the train. Corbett v. Hines, 194 Iowa 1344, 191 N.W. 179, and cases cited. If there was no noise from the automobile that interfered with her hearing while it was in motion, it cannot be said that the driver was required to stop for the purpose of listening. Nor was she required to stop and look at a point where she could not have seen the train.

If she was warned by the man near the crossing of the approach of the train when she was at a point where she could have stopped, it was her duty to have done so. But, as we have said, there was a conflict in the testimony as to when she could first have seen the man. If she did not see, and could not have seen, the train, or have received the warning of its approach, until she was past the standing box car, and the front of the moving automobile was then but 8 or 10 feet from the point where it would be struck by the train, we are not prepared to say, as a matter of law, that she should then have tried to stop in that limited distance and with that narrow margin of safety, and that it was negligence for her to then attempt by increasing her speed to cross in front of the engine. And this is true, although it would have been possible for a driver not under the influence of excitement to have stopped in that distance. She is not to be judged by what might now appear to have been the safer course. She was only required to exercise the care of an ordinarily prudent person under the circumstances and in the emergency then confronting her. The court properly so instructed. We are of the opinion that the question of contributory negligence was for the jury.

II. Three witnesses who testified that they did not hear any signals from the engine by bell or whistle as the train approached the crossing were permitted, over objection, to testify that they could have heard such signals, had they been given, and that none were given. Two of these witnesses were the driver of the automobile and her companion, who both said that they were watching for the train and listening for signals. The other was standing 20 feet from the track, heard the train whistle when at a distance, and before it...