Anderson v. United States Railroad Admin.

• Decision Date: 23 June 1922
• Docket Number: 34031
• Citation: 188 N.W. 826,193 Iowa 1041
• Parties: OSCAR ANDERSON, Appellee, v. UNITED STATES RAILROAD ADMINISTRATION et al., Appellants
• Court: Iowa Supreme Court

188 N.W. 826

193 Iowa 1041

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

No. 34031

Supreme Court of Iowa, Des Moines

June 23, 1922

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

ACTION to recover damages for injury to an automobile owned by plaintiff, caused by collision between the automobile, driven by the wife of plaintiff, and one of the trains of the Chicago, Rock Island & Pacific Railway Company, under the operation of the director general of railroads, in the town of Garrison, Iowa, on the 29th day of July, 1919. The jury returned a verdict in favor of plaintiff for $ 1,000, and judgment was entered thereon. Defendant appeals.--Reversed and remanded.

Reversed and remanded.

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

Kirkland & White, for appellee.

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

OPINION

ARTHUR, J.

While the automobile in question was being driven across the railroad track in the town of Garrison, it was struck by one of defendant's trains, and sustained the damages sued for. Two grounds of negligence were alleged, and both were submitted to the jury: (1) That the defendant failed to blow the whistle or ring the bell, or give any signal of the approach of the train at the crossing; and (2) that the defendant had blocked the highway with box cars, which entirely obscured the view of the driver of the automobile.

The tracks of the Rock Island Railroad Company entering the town of Garrison run substantially east and west. One block east of the depot is a public highway crossing, leading south across the railroad tracks. Crossing this highway are three tracks. Between the first track and the second track, the distance was 18 feet. From the middle track or stock track to the main track was 20 feet. North of the tracks and east of the highway is a coal chute, 165 feet wide and 106 feet long. Still west of the coal shed and north of the tracks is a canning factory building, there being an alleyway between the coal shed and the canning factory building. From a distance 100 feet north of the crossing to the point of the accident, the ground is substantially level. There is a switch track from the main line to the second track or stock track. East from the crossing, the track is straight for approximately 50 rods.

Plaintiff was the owner of a Jackson 8-cylinder car. Plaintiff's wife, on the morning of July 29, 1919, was driving this car. She drove into Garrison from the south over the crossing in question, between 8 and 9 o'clock in the morning. She returned from town, driving the automobile, some time after 10 o'clock in the forenoon. When she crossed the tracks entering town, there were some box cars standing on the second track, and when she crossed the tracks leaving town, when the accident in question occurred, the cars on the stock track were in the same position as when she drove into town. On her return, driving from the north, because of the coal chutes, the canning factory, and the cars standing on the stock track, the main-line track to the east was hidden from her view. She was driving from 5 to 10 miles an hour. Mrs. Mullinex, her aunt, was sitting on her right. She drove across the first track and the second track, on which second track stood a box car which projected into the road somewhat, and attempted to pass over the third track. The automobile was struck by the engine of the train in question, about the center of the automobile. The automobile received injury, for which this suit was brought to recover. The train was moving about 15 miles per hour. The canning factory was not running. There were no obstructions whatever to the west side of the crossing. When Mrs. Anderson was driving over the crossing, a section hand, who was standing south of the crossing when the accident happened, about 20 feet from the point where the accident occurred, saw the automobile coming from the north on the crossing, and tried to have it stopped. He testified that, when he first saw the automobile and tried to stop them, the automobile was about 6 or 7 feet north of the first or north track. He said: "I raised up my hands and said 'Hold'--just that very way, twice or three times." He further said:

"I was standing right in the middle of the track, and I had to step off the main line to let the passenger train by, because it was so close I would have got killed. I was waiting there, and I seen this automobile coming, and I tried to stop them before the train would hit them. I held up both hands, and I said, 'Hold on there.' I said it two or three times. The automobile did not stop. It did not slow down."

Mrs. Anderson testified that she heard the alarm given by Patton just as she passed the box car which was standing on the second track; that Patton holloed, "Oh, the cars, the cars, " or something to that effect.

Mrs. Esther Mullinex, who was riding with Mrs. Anderson, testified:

"We were on the track with the automobile,--the second track, I think,--when I heard somebody shout, 'Oh, the cars, the cars.'"

Paul Zimmer, witness for plaintiff, testified that the automobile was about on the first track, when he heard somebody shout to the occupants of the car. Zimmer also testified that there were some box cars on the first track and some on the second track, which extended out into the public highway; that a car on the second track was farthest out in the highway; that the automobile was right on the first track, just east of the coal shed, when he heard somebody shout.

There is conflict in the evidence as to whether the bell was rung.

Defendant moved for a directed verdict, at the close of the plaintiff's evidence and at the close of all the evidence, which motions were overruled by the court.

Errors relied on for reversal are:

"(1) The court erred in overruling defendant's motion to direct a verdict for ...