Bannister v. Ill. Cent. R. Co.
| Decision Date | 10 March 1925 |
| Docket Number | No. 35156.,35156. |
| Citation | 199 Iowa 657,202 N.W. 766 |
| Parties | BANNISTER v. ILLINOIS CENT. R. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Linn County; F. O. Ellison, Judge.
Action to recover damages for personal injuries resulting from a collision between a Ford coupé driven by plaintiff's assignor and a railroad train operated by the defendant company. Upon the conclusion of the plaintiff's testimony, defendant's motion for a directed verdict was sustained and judgment entered against plaintiff for costs. Plaintiff appeals. Affirmed.Patterson & North, of Cedar Rapids, for appellant.
Helsell & Helsell, of Ft. Dodge, and J. M. Grimm, of Cedar Rapids, for appellee.
DE GRAFF, J.
The accident giving rise to the instant action happened December 21, 1921, on a street crossing in the town of Jesup, Iowa. The facts are not in dispute. The ruling of the court at the conclusion of plaintiff's evidence relieved the defendant from offering any testimony. The appeal presents but one question, Was the plaintiff guilty of contributory negligence as a matter of law?
[1] The collision occurred on what is called the Eighth street crossing, located on the south side of the town. Eighth street runs north and south, and the defendant's railroad line east and west. The crossing was 75 feet wide from sidewalk to sidewalk, and it is shown that the surface of the roadway on Eighth street at the time of the accident was in good condition. Three tracks of the defendant railroad cross Eighth street; the most southerly called the “house track,” the next to the north “the main line track,” and north of the main line the “switch track.” The distance between the north rail of the house track and the south rail of the main line track is approximately 40 feet. Plaintiff approached the crossing from the south. The train was west bound. His view to the east was obstructed until he passed a freight car which it is claimed was on the house track. It is undisputed that the plaintiff had 40 feet of open space between the tracks, with an unobstructed view of from 2 to 3 miles. It was a straight track. The accident happened at 4:25 p. m. on a clear day, and the driver of the car knew that the train in question was scheduled to arrive between 4:20 and 4:25. He did not know whether it had passed at that time. Immediately prior to the accident he stopped at a filling station for gas. He testified: “I knew when I came from the gas station there would be this train.” He was intimately acquainted with the crossing, and had frequently driven over it. He was familiar with the buildings on the east side of the street near the crossing. He knew there were no gates or flagmen at the crossing, and testified that he was not “relying on gates, flagman, or gong to warn me of the approach of the train.” He looked before reaching the house track, but the evidence clearly shows that under the physical facts and surroundings he could not have seen the approaching train until he reached the house track. He knew this.
[2] It is shown that when he first looked to the east his view was obstructed and he knew it, and that he did not again look to the east until he reached a point that a collision could not be avoided. In other words, the driver did not look at a point where he could see, and he traveled a distance of 40 feet between the house track and the main track without looking to the east. During this time and distance it was his only opportunity to see the approaching train. He knew this, and at that very time he also knew that there was a passenger train due from the east shortly after 4 o'clock. No diverting circumstance is shown. No other train was then and there operating, and no other person or vehicle was near or on the crossing. He was driving slowly. He had his car under control and could have stopped in 6 or 8 feet. His brakes had been tested on the day of the accident, and they were in good working order. He was an experienced driver. The presence of the freight car as claimed by the plaintiff was not an independent ground of negligence. Anderson v. U. S. Railroad Adm'r, 193 Iowa, 1041, 188 N. W. 826. That is to say, it was not such an act of negligence as standing alone would create a liability for damages, but it was competent for plaintiff to show this fact as bearing upon the degree of care required to be exercised by the defendant, and also by the plaintiff. Glanville v. C., R. I. & P. Ry. Co., 196 Iowa, 456, 193 N. W. 548;Anderson v. U. S. Ry. Adm'r, et al., 197 Iowa, 1, 196 N. W. 584. Nor does the evidence concerning the pleaded act of negligence of the defendant in failure to give warning by bell or whistle, considered with the evidence of what the plaintiff did immediately prior to the accident, make a jury question as to the contributory negligence of plaintiff. Plaintiff's witnesses admitted that they were paying no attention to signals, except one witness, who testified that the whistle was blown “as loud as they could whistle, I guess.”
[3][4] The mere negation on the part of a witness that he did not hear the bell rung or the whistle sounded on an engine approaching a public crossing will not sustain the finding by a jury that such signals were not given, when it is shown that the witness was not paying any attention to the occurrence, and does not know “whether the train whistled or the bell rang,” but simply...
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