O'Brien v. Chicago, Rock Island & Pacific Ry. Co.

• Citation: 214 N.W. 608,203 Iowa 1301
• Decision Date: 21 March 1925
• Docket Number: 35098
• Parties: EUGENE O'BRIEN, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: United States State Supreme Court of Iowa

214 N.W. 608

203 Iowa 1301

EUGENE O'BRIEN, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 35098

Supreme Court of Iowa, Des Moines

March 21, 1925

OPINION ON REHEARING JULY 1, 1927.

Appeal from Palo Alto District Court.--D. F. COYLE, Judge.

Action for damages for personal injury received as a result of a collision between an engine of the defendant's and an automobile in which plaintiff was riding. From a verdict of $ 9,000 in favor of the plaintiff defendant appeals.

Reversed.

J. G Gamble, R. L. Read, and Soper & Soper, for appellant.

E. A and W. H. Morling, for appellee.

ALBERT, J. EVANS, C. J., and FAVILLE, DE GRAFF, VERMILION, and KINDIG, JJ., concur. MORLING, J., takes no part.

OPINION

ALBERT, J.

A rehearing was granted in this case. The original opinion is found in 202 N.W. 778. Said opinion is withdrawn, and this opinion substituted in place thereof.

Lincoln Street is one of the principal streets in the city of Estherville, and is paved. It extends approximately in an easterly and westerly direction. It is used very much during the summer season, being one of the main arteries leading to the lakes in Dickinson County. Sometime in August, 1920, the plaintiff, O'Brien, with three companions, who lived at some point east of Estherville, took a Ford automobile, owned by one Kane, to make a trip to the lakes. In going there, they traversed this street, and crossed the railroad tracks in controversy, where the accident occurred, at some time during the afternoon. They returned from the lakes about midnight, or a little later. At the time of the accident, one Pierce was driving the car. Kane, the owner, was sitting in the front seat with him, to his right, and Hand and the plaintiff were in the rear seat, plaintiff being on the right side.

They approached this railroad crossing from the west, about 1:30 o'clock A. M. on August 7th, at a speed found by the jury to be 22 miles an hour. For practical purposes, the railroad tracks in controversy, running in a northerly and southerly direction, cross Lincoln Street at approximately right angles. At the point under consideration there are six tracks. West of the freight house, which stands south of Lincoln Street, are three tracks. The main line is east of the freight house. From the center of the main line to the nearest of the three tracks west of the freight house is 100 feet. East of the main line is another track, called the "depot track, " and east of the last track and south of Lincoln Street is the passenger station. East of the passenger station is another track. In other words, as one approaches this locus in quo from the west, he will first cross what is called the "elevator track," then "House Track" No. 2, and then "House Track" No. 1, which lies immediately west of the freight house.

As the automobile was passing east, they were struck, at a point in the center of Lincoln Street where it intersects with the main-line track, by a "double-header" freight train, going in a northerly direction. As the main-line track was approached, the view from the automobile, looking southward, was partially obstructed. At a point 100 feet west of where the car was struck, one in the car could see an object on the main line 131 feet from where the collision occurred. At a point 70 feet from the point of collision, an object was observable 300 feet from the point of collision. At a point 50 feet from the point of collision, the view to the south down the track was 779 feet, and at a point 25 feet from the point of collision, the view to the south was unobstructed for half a mile or more.

But two questions of negligence on the part of the defendant were submitted to the jury:

First. The defendant failed to maintain at the crossing in question any gates or flagman or any warning...