Bettinger v. Loring

• Decision Date: 19 December 1914
• Docket Number: 29710
• Citation: Bettinger v. Loring, 168 Iowa 103, 150 N.W. 31 (Iowa 1914)
• Parties: EUGENIA BETTINGER, as Administrator, etc., Appellee, v. HOMER LORING et al., as Receivers, Appellants
• Court: Iowa Supreme Court

150 N.W. 31

168 Iowa 103

EUGENIA BETTINGER, as Administrator, etc., Appellee, v. HOMER LORING et al., as Receivers, Appellants

No. 29710

Supreme Court of Iowa, Des Moines

December 19, 1914

Appeal from Webster District Court.--HON. R. M. WRIGHT, Judge.

ACTION at law to recover damages for the death of Eugene Bettinger who is alleged to have lost his life by the defendant's negligence. Verdict and judgment for plaintiff and defendants appeal.

Affirmed.

Dyer & Dyer, for appellants.

Kenyon Kelleher & O'Conner, and Frank Maher, for appellees.

WEAVER J. LADD, C. J., EVANS and PRESTON, JJ., concur.

OPINION

WEAVER, J.

The company of which defendants are receivers owns a line of electric railway extending from Fort Dodge to Des Moines and other points. On August 12, 1911, plaintiff's intestate was struck and mortally injured by one of the company's trains upon a highway crossing in Webster county on the border of the city of Fort Dodge, and this action is brought to recover the damages thereby occasioned to his estate. In support of such claim it is alleged that the collision is chargeable to the negligence of the persons having charge and control of the movement of the train in the following particulars:

1st. That they were negligent in failing to exercise reasonable care to stop the train and avert the injury after they discovered or knew of the peril to the deceased.

2nd. That they were negligent in failing to give proper signals or warnings of the approach of the train; and,

3rd. That defendants, their agents and employees, were negligent in operating trains over said crossing, which by reason of the manner of its construction and its surroundings rendered its use peculiarly dangerous, without employing a watchman or making use of other proper safety device.

Answering plaintiff's claim, defendants deny the charges of negligence on its part, allege that the collision was due to the negligence of the deceased, and further say that if the crossing was especially or peculiarly dangerous the deceased knew it and undertook its use fully appreciating the risk thereof.

I. Appellant's argument is first directed to the proposition that there is no evidence of defendant's negligence and no sufficient showing that deceased exercised due care for his own safety.

It is conceded by both parties in argument that the crossing in question is obscure and dangerous. The railway at this point is laid through a somewhat broken and hilly tract of land bordering the course of the Des Moines river. Immediately at the crossing the railroad runs substantially north and south and intersects the highway, which here extends from the southeast to the northwest, at a somewhat sharp angle. The approach of the railway from the south is up grade and around curves. At a point about 150 feet south of the crossing an approaching train comes around a curve and through a cut, the depth of which is variously stated by the witnesses as from nine to fifteen feet, and upon the banks of which was a growth of weeds and brush from two to four feet in height and a few small trees. Owing to these conditions, the curve in the track, the high banks and other obstructions, one who is driving in an ordinary carriage along the highway from the east after passing a point about 150 feet distant from the crossing obtains no view of the track to the south until his team is nearly or quite upon the east rail.

On the day in question the deceased, who was conducting a livery stable in the city of Fort Dodge, had been employed to drive one Frund to a mill situated some two miles beyond this crossing and was returning alone to the city when his injury occurred. There is no living eyewitness of the collision, for strangely enough, none of the three employees accompanying the train appear to have seen the deceased or to have known of the collision until later in the day. According to their version of the incident they came from the south with a train of freight cars to a point a half mile or more from the crossing, where they cut the train in two, proposing to take it up the grade in sections. They say they proceeded with the first section of ten or fifteen cars very slowly until as they approached the crossing they came to a full stop. Then after an interval of fifteen seconds and sounding the whistle they moved on slowly to a switch some four hundred feet farther to the north where they placed the cars on a sidetrack and then started back with their motor after the second section of the train. When this return movement was begun and they approached the crossing they discovered for the first time the body of Mr. Bettinger, the wreck of his carriage, and his horses standing on each side of the cattle guard and one of them badly wounded. It should also be said that the trainmen testifying in the case further say that when they stopped the first section at the crossing, they looked down the road to the east a distance of 150 to 160 feet, the direction from which deceased must have appeared, and saw neither him nor any other person. The only explanation these witnesses can give of the collision is by way of theory or conclusion that deceased recklessly or blindly drove his team into collision with the train after the motor had crossed the highway but before the crossing was fully cleared by the attached cars. This theory, they say, and counsel argue, is borne out by the fact that upon subsequent examination blood and hair were found under the sill on the east side of the fourth car from the motor. But this is at best a matter of argument or deduction, the correctness of which the court cannot pass upon as a matter of law. Nor do we find the record such that we can say as a matter of law that there is no evidence of want of due care in the handling of the train. The crossing, as we have said, was a peculiarly dangerous one and it was much used by the public. The care which the law requires of a company operating cars over or across a public highway is care which is reasonably proportioned to the peril to be guarded against. Kinyon v. R. R. Co., 118 Iowa 349, 92 N.W. 40; Gray v. R. R. Co., 143 Iowa 268, 121 N.W. 1097; Gray v. R. R. Co., 160 Iowa 1, 139 N.W. 934.

And the facts being shown, the question whether they answer the requirements of reasonable care under all the circumstances is ordinarily for the jury to answer. It is true that the trainmen, or at least two of them, testify that they came to the crossing slowly, made a full stop and then moved on very slowly, and if this is to be accepted literally it is very possible that the court would not permit a finding of negligence to stand. But while there is no eyewitness to deny these statements, it can hardly be questioned that the facts and circumstances otherwise established are such as may properly have lessened the weight and value of such testimony in the estimation of the jury, or to suggest the thought that the trainmen were testifying more from their memory of their rules and customs than from a specific recollection of the actual occurrence. If, as they say, when the motor crossed the road there was no one approaching upon the 160-foot stretch of highway to the east, it is quite incredible that deceased should have covered that distance and crashed into collision with the fourth car behind the motor. Again, while the fact is the subject of dispute, there was testimony which, if believed by the jury, would sustain the finding that when first discovered the helpless body of the deceased was lying close to the rail on one side of the track while the wrecked carriage was on the other--a circumstance which tends to discredit the suggestion that deceased drove midway into the side of the moving train. Still again, though it is perhaps not an impossible result, it is not easy to understand how upon the theory advanced by appellant the deceased sitting in his carriage could have been thrown under the wheels of the moving train. That he was under the wheels is quite clearly shown from the fact that his foot or leg was crushed and portions of his clothing "sheared" off and left lying between the rails. Indeed, except for the insistence of the trainmen that they saw nothing of the deceased or his team or carriage at or near the crossing until their return trip, the facts and circumstances disclosed are all quite consistent with the conclusion that when struck by the train deceased was in the act of crossing the track; or, in other words, that he or his team came upon the track slightly in advance of the train. There is evidence that wheel tracks which may have been made by his buggy veered sharply to the north near the track and it is possible that the deceased finding the train upon him sought to swing the team out of danger, or that the team in its fright instinctively took that course and was immediately overtaken and the outfit broken and scattered by the impact. That these things could have happened, or that deceased could have driven into the side of the train and met his death without being discovered, if the train had stopped a few feet south of the crossing and then have moved forward at three miles per hour while the trainmen looked down the highway and found it clear, is something so out of harmony with the ordinary experience and observation of mankind that the court cannot say that the jury was manifestly wrong in refusing to give it controlling weight and influence in deliberating upon the verdict.

There is still other evidence having direct bearing upon this feature of the case. The defendant's witness, Mrs. Jones driving in the opposite direction passed over the crossing just as the train was in the cut on the south. Her team was moving rapidly and she met deceased going toward the crossing at a point...