Brown v. McAdoo

• Decision Date: 09 May 1922
• Docket Number: 33854
• Citation: 188 N.W. 7,195 Iowa 286
• Parties: P. J. BROWN, Administrator, Appellant, v. WILLIAM G. MCADOO, Director General of Railroads, et al., Appellees
• Court: Iowa Supreme Court

188 N.W. 7

195 Iowa 286

P. J. BROWN, Administrator, Appellant, v. WILLIAM G. MCADOO, Director General of Railroads, et al., Appellees

No. 33854

Supreme Court of Iowa, Des Moines

May 9, 1922

REHEARING DENIED FEBRUARY 17, 1923.

Appeal from Clay District Court.--N. J. LEE, Judge.

PLAINTIFF as administrator of the estate of John A. Brown, brought this action to recover damages for the death of said John A Brown, who was killed when a Ford automobile in which the said John A. Brown was riding, in company with one Frank L Putnam, collided with a passenger train in charge of defendant railroad, at a highway crossing southeast of Spencer, Iowa, on July 29, 1918. At the close of all the evidence, on motion of defendant, the court directed a verdict for defendant, and entered judgment for costs against plaintiff. Plaintiff appeals.

Affirmed.

Heald & Cook and Cornwall & Cornwall, for appellant.

Hughes, Sutherland & O'Brien and J. W. Cory & Son, for appellees.

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

OPINION

ARTHUR, J.

I.

The petition alleges three grounds of negligence, to wit, excessive speed of the train, failure to sound the whistle until within about 300 feet of the crossing, and failure to ring the bell until within about 50 feet of the crossing. The answer was a general denial and an allegation of negligence on the part of the deceased, John A. Brown.

At the point of the accident, the line of railway runs almost due north and south, and the highway runs east and west. The country in the vicinity of the crossing is flat and approximately level. For one half to three quarters of a mile south of the crossing, where the right of way emerges from the river hills, it is a flat, level country. About a mile west of the crossing is a river, which courses from north to the south and southeast. From the railroad west to the river the land is level, and it is level to the north and to the east. There is no cut in the track for over a mile south of the crossing. The track south of the crossing is graded up slightly by ballast. The highway running east and west passes over level ground. The ground along the roadway up to the track is fairly level.

Plaintiff, as a witness, testified that the highway east from the first bridge, which is 575 feet west of the crossing, and up to the crossing, was rutty; that the ruts were from "three inches to a foot deep, and snake trails;" that "within 75 feet of the track the road was smooth, but humpy, and by straddling the ruts either way, there was a comparatively smooth track."

A witness for defendant, Otto Bjornstad, testified that the roadway from the lane leading to the house on the farm south of the highway, which lane is 250 feet west of the crossing, was in good condition for a distance of probably 200 feet; that the road was dry; that there was no mud; that there were some dry ruts; that the road nearer the track was better than it was farther back; that "for at least 100 feet back from the track there were no ruts;" that west of the right of way and south of the highway lay a field, in which there was growing corn at the time of the accident, about ten feet high; that the field which was planted to corn was flat and low, but inclined higher to the east toward the railroad right of way; that there is a rise in the land south of the highway on the west side of the track, beginning at the second bridge, which is 1,500 feet west of the crossing, and extending east and south; that there were willow trees along the south side of the highway and west of the first bridge, eight or nine feet high at the time of the accident, which were thickly leafed; and that there were no gaps in this willow hedge, except a gap perhaps about 30 feet wide, where the lane enters the premises from the highway to the improvements, the house, barn, etc., about 250 feet west of the crossing. These willows extended west from the first bridge about 100 feet. East from the first bridge, where the willows left off, there was a plum thicket on the south side of the road. From about 425 feet west of the right of way and south, are located the barn and house and sheds, and there were trees among the improvements, in irregular position.

II. Brown and Putnam were driving east on the highway. Putnam was going out into the country to buy some horses, and plaintiff's decedent, Brown, accompanied him on the trip. The record shows that "deceased, Brown, was going out to show him [Putnam] where the horses were." Brown had been out on such trips with Putnam before. Sometimes he had been paid for his services, and sometimes not.

It is not disputed that, to a traveler on the road journeying east, the view to the north was free and unobstructed. A traveler going east on the highway could look northeast from about 1,500 feet east of the track, and would have an uninterrupted view of a train to the north for a mile. It is not claimed that there were any obstructions on the right of way that would obstruct the view to the south. It was 50 feet from the right-of-way fence to the track. Plaintiff testified:

"When you are 50 feet from the railroad track, you could see the rails 200 or 300 feet."

Plaintiff's witness Wallace Hargrave testified:

"Standing 75 feet west of the crossing, you could see a train 200 feet down the track. The row of willows ended about 50 feet west of the right-of-way fence, or 100 feet west of the track."

A few feet west of the right-of-way fence, 8 or 10 feet, stood a small tree, and about 25 feet west of the right-of-way fence was a larger tree.

L. Howe, witness for defendant, testified:

"Standing in the center of the highway 60 feet west of the track at this time, I would say you could see a train south 30 or 40 rods."

Defendant's witness E. C. Fee testified:

"If you stood 70 feet from the track, you could see half a mile down the track."

Fee was a member of the coroner's jury, which viewed the premises the day after the accident. Fee further testified:

"The first place--that is, the farthest place--from the track where one could look through, was the place between the big willow and the small trees which were near the track. Then, a little closer to the track, one would be behind these two small trees for a short space, and then you would come into full view of the track; and from that point, which is 60 feet from the track, your view would be unobstructed."

A witness called by plaintiff, who lived in the vicinity of the accident and who traveled the road frequently, testified that, as a person traveled along towards the track from the point where the willow trees began, west of the first bridge, a train approaching from the south could not be seen until one came out on the railway right of way,--that is, the edge of the right of way, 50 feet from the track; although Wallace Hargrave, called by plaintiff, testified that, "standing 75 feet west of the crossing, you could see a train 200 feet down the track."

Defendant introduced in evidence a photograph (defendant's Exhibit No. 1), which is before us, taken with the camera located 60 feet west of the track, and in the center of the highway. The lens of the camera was 5 feet from the ground. In this picture, the same train is shown that was involved in the accident, and the camera caught the train when it was running, coming north, about 600 feet south of the highway.

III. The accident occurred about the middle of the afternoon, on July 29, 1918. Putnam and Brown left Spencer shortly after noon, and their movements until observed by the witnesses are not disclosed by the record. It was Putnam's car, and he was driving. Wallace Hargrave and his nephew, Donald Hargrave, were cutting oats in a field north of the highway, and about 90 rods west of the track. The ground where the Hargraves were is 4 or 5 feet above the general level of the country, and they were running a binder, and were on the binder, 4 or 5 feet up off the ground. They saw the car, with these two men in it, pass east along the highway, and they watched it until the time of the accident. They thought the two men in the car were brothers of Wallace Hargrave's, and one of them the father and the other the uncle of Donald Hargrave; and this gave them special interest in watching them. They knew that the train had not passed along yet, and they watched the automobile with these two men intently from the position they occupied on the binder. They say that, when the car passed along the road opposite them, it was traveling 15 or 20 miles an hour. They say that the road from the first bridge to the crossing was rutty; that the ruts were from 3 or 4 inches to a foot deep; and that a Ford car could not be driven in that space in safety at more than 5 miles an hour; and they say that the car slowed up, after it left the first bridge, which is 575 feet west of the right of way.

While no witness so testified, counsel for both parties assume in their arguments that Putnam was driving the car, and that he was on the north side, and that Brown was on the south side, or the side the train came from. Both men were sitting in the front seat of the car. Brown was familiar with the crossing. For more than 7 years he had traveled over all the country near Spencer, buying stock.

The fireman on the train testified that, when he first saw the car, it was about 50 feet from the track, and traveling 20 to 30 miles an hour. He said:

"There were two men in the car. They were not looking toward me or toward the engine. They appeared to be talking to each other. The train was then about 100 or 150 feet from the auto."

He said that he kept his eye on them until they disappeared in front of the engine at the instant of collision.

Wallace and Donald Hargrave testified...