Black v. Chicago Great Western Railroad Co.

• Decision Date: 22 November 1919
• Docket Number: 32683
• Citation: 174 N.W. 774,187 Iowa 904
• Parties: WILLIAM BLACK, Appellee, v. CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

174 N.W. 774

187 Iowa 904

WILLIAM BLACK, Appellee, v. CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant

No. 32683

Supreme Court of Iowa, Des Moines

November 22, 1919

Appeal from Polk District Court.--THOMAS J. GUTHRIE, Judge.

ACTION at law to recover damages for injuries received by plaintiff in a collision between an auto truck, in which he was riding and an engine and train operated by defendant. Trial to a jury, and verdict and judgment for plaintiff. The defendant appeals.

Affirmed.

Carr Carr & Cox, and Donald Evans, for appellant.

Brammer, Lehman & Seevers, and Tourtellot & Donnelly, for appellee.

PRESTON, J. LADD, C. J., GAYNOR and SALINGER, JJ., concur.

OPINION

PRESTON, J.

The issues, as stated by appellant, are that, they are the usual questions of negligence and contributory negligence, and in addition thereto, the following:

Was the plaintiff, after having received from his employer payments due him under the provisions of the Workmen's Compensation Act, entitled to maintain this action for damages against the defendant? One or two other questions are argued briefly, but the principal questions, and the one most argued, is the one last stated. The trial court held the issues of negligence and contributory negligence, under the evidence, to be issues of fact, and submitted the same to the jury. It also held that the recovery by plaintiff from his employer of benefits of the Compensation Act did not prevent his recovery of damages from the defendant for its negligence, and instructed the jury, in case it found for plaintiff in excess of $ 378, to deduct from the amount to which they found plaintiff entitled, the amount he had received as compensation. The amount of compensation which had been paid plaintiff by his employer was $ 378. The verdict and judgment were for $ 7,197. Plaintiff has not appealed, and says in argument that he does not object to the deduction made; so that the question whether the deduction was properly made is not in the case. If it was not properly deducted, the defendant may not complain, since the prejudice, if any, in that case is against the plaintiff. Whatever may be said in the opinion by way of discussion, we shall not determine the question whether such deduction was or was not properly made, in this case. The one question involved; in so far as it involves the construction of a section of the Workmen's Compensation Act, will be stated later. A brief statement of the facts which are undisputed, or which could have been found by the jury, will be made, in so far as they have a bearing on the questions presented.

It appears that plaintiff was injured about 9:30 A. M., November 8th. Plaintiff, together with Young and De Fore, all employees of the Ware Transfer Company, were returning to the office of the company, after delivering a piano in South Des Moines. At the time of the collision, they were riding in a motor truck, which weighed 4,200 pounds, and was driven by De Fore. The truck was equipped with pneumatic tires in front, and solid rubber tires in the rear. The brakes were in order. There was an enclosed cab over the seat where the driver and his companion sat, with wind shield, glass in the glass in the doors on either side, and a glass window in the side back of the door. De Fore, the driver, was sitting on the left, or west, side of the truck. Young was at his right, and plaintiff was sitting on Young's lap. The railway track runs at an angle, but substantially east and west. The train was going west. The truck was going north on East Sixth Street, which crosses the railroad track near Shaw Street, a street running east and west. At the point of the collision, the street is practically level for a distance of 300 or 400 feet, and is paved with concrete. The paving is 24 feet wide. The railway is constructed upon an embankment, and the paved portion of the streets and the tracks is higher than the surrounding ground. On the east side of Sixth Street, for a distance of some 300 feet south of the tracks, there are houses and trees extending to within about 50 feet of the track, which obscure the vision to the east, of persons traveling north. There is a large tree near the northwest corner of the house nearest the track, which tree had shed its foliage. As plaintiff approached the track, the truck was going at the rate of from 8 to 10 miles per hour, and the train, 18 to 20 miles an hour, according to plaintiff's testimony, but considerably less than that, according to defendant's witnesses. Prior to the accident, it had been raining and snowing to some extent, and the street was wet and slippery. Both plaintiff and the driver knew they were nearing a railroad crossing. Plaintiff says:

"As we approached the crossing from the south, I looked and listened; as we got up within probably 75 feet of it, I listened to see if I could hear any sounds or any sign of anything coming, and I did not hear anything. When we got up about 40 or 50 feet, I should judge, I saw the engine coming, and I guess we must all have seen it about the I started to look and listen about 75 or 100 feet south of the track, and I did not hear anything, and then we got up 40 or 50 feet, and I saw the engine coming, but did not hear any bell or other warning. I did not hear the bell on the locomotive ring at any time before or after I reached a point 100 feet south of the crossing; did not hear a signal of any kind. I commenced to listen when I was about 75 feet from the track. I looked all the time from the time we came within 75 feet of the track; didn't look east all the time, but looked several times, and kept looking all the time until we came to 50 feet from the track, and saw the engine. * * * The driver put on the brakes, and it seemed as if the truck kind of started to slow down, as quick as he saw the engine. De Fore put on the brakes at the time I saw the engine, and it checked the truck or slowed it down; * * * after the brakes were applied, the truck didn't continue in an exactly straight course,--I don't know whether it skidded or whether the driver turned the front wheels of it off, but it seemed like it went a little bit sidewise; the back end went a little bit to the east, when we went up to the track. The brakes were on from the time when they were first applied until the truck reached the track."

As the truck approached the track, plaintiff did not say anything to the driver, before they reached the point where they saw the approaching train, because, as he says, he saw the driver was looking and listening for a train, the same as he was.

"I was looking, just the same as anybody riding in a car, coming up to a railroad crossing, looks to see if anything is coming, whether they are driving the car or not. I saw the train just about the time I felt the car slow down. I had no purpose to tell De Fore of the approach of the train, as long as he was looking. If he had been looking some other way when I had seen the train, I would have told him, but he was looking, the same as I was."

The driver gave similar testimony, and that, when he and plaintiff saw the engine, he applied the brakes to the truck, which skidded for a distance of about 50 feet to the track, where it was struck by the locomotive; that the car stopped right on the track, practically as the engine struck. Another witness testifies that he was not in a position to see the truck skid, but that he noticed skid marks, with the first mark about 15 feet from the rail. The driver further testifies that the truck began to slide immediately as he put on the emergency; that he put on both pretty near the same time he saw the engine; that they all saw the train at the same time; that plaintiff said there was a train coming, and they all saw it at once; that he had the brakes on as he said it, and had commenced to slow down. The evidence is that, when they saw the engine, it was about 150 feet east of the crossing. There were other witnesses give a somewhat different version as to some of these matters which have a bearing on the question of plaintiff's alleged contributory negligence.

After the plaintiff's injury, he was paid $ 378 by his employer, under the Iowa Compensation Act.

The city ordinance was introduced in evidence. We have not gone into the evidence as to the alleged negligence of defendant, nor as to the extent of plaintiff's injuries, because such matters are not argued. As said, the principal point in the case is whether defendant's point is well taken, that plaintiff cannot maintain the action because of the payment of compensation under the Compensation Act. We shall take up the other matters first.

1. It is contended by appellant that the plaintiff was, as a matter of law, guilty of contributory negligence, and that its motion for a directed verdict should have been sustained. The argument is that either plaintiff approached the track, or allowed the driver to approach it, at such a rate of speed that it was impossible to stop after reaching the point where the approach of the train could be seen, or else he did not look, or do anything to induce the driver to reduce the speed of the truck, until he reached a point 15 feet from the track. Under the evidence, the jury could have found that this distance was greater than 15 feet. On the duty of plaintiff to look and listen, they cite Chicago, M. & St. P. R. Co. v. Bennett, 181 F. 799; Evans v. Baltimore, C. & A. R. Co., 133 Md. 31 (104 A. 112). The facts in those cases are, in some respects, quite different from the evidence in the instant case. It is also argued that, though the plaintiff was not driving the truck, it was his duty to exercise care in approaching the crossing, and that they approached the crossing without protest on the part of pl...