Butterfield v. Chicago, Rock Island & Pacific Railway Co.
| Decision Date | 22 November 1921 |
| Docket Number | 34239 |
| Citation | 185 N.W. 151,193 Iowa 323 |
| Parties | MRS. GEORGE L. BUTTERFIELD, Administratrix, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 11, 1922.
Appeal from Marion District Court.--L. N. HAYS, Judge.
ACTION at law, begun by George L. Butterfield, to recover damages for personal injury. Before the case came on for trial Butterfield died, and his wife, as administratrix of his estate, was substituted as plaintiff. There was a verdict for plaintiff, and from the judgment entered thereon, the defendant appeals.
Affirmed.
J. G Gamble, R. L. Read, and W. H. Lyon, for appellant.
Vander Ploeg & Johnson, for appellee.
The accident occurred in the town of Knoxville, Iowa, at the intersection of Seventh Street, extending north and south, and the main track of defendant's railway, extending east and west. West of this crossing and on the north side of the railway track was the plant of the Knoxville Clay Products Company, spoken of in the record as the "tile works," or "tile plant," consisting of a shed, office, and several kilns. A driveway entrance to this plant extended from Seventh Street, at a point 80 feet north of the crossing, west to the north side of the buildings, and parallel to the track. The works were in operation, and the deceased, with Murphy, an employee, was delivering coal to the kilns. In performing this service, they made use of an auto truck driven by Murphy. On the day in question, after delivering a load of coal, they undertook the return trip, going east along the driveway to Seventh Street, thence south across the track. As they reached Seventh, a witness, Urban Hill, driving an auto to the south, passed immediately in front of them. Murphy checked the speed of the truck, to permit Hill to take the lead, then, turning in immediately behind him, followed the auto to the crossing. Hill crossed in safety; but, as Murphy's truck entered upon the track, it was struck by a train moving eastward. The deceased was badly injured, both arms being broken, and he sustained other wounds and bruises. Murphy was not seriously injured, but the truck was ruined. In this action to recover damages, the defendant is charged with negligence as follows: (1) In failing to give warning or signal of the train's approach to the crossing; (2) in operating its train at an excessive speed, in violation of a city ordinance; (3) in operating its train at a dangerous rate of speed where the view of the crossing was obstructed; and (4) in operating its train with cars ahead of the engine, without watchman or guard placed in front.
The defendant denied the charges of negligence, and alleged contributory negligence on the part of the deceased.
There was a jury trial. At the close of the plaintiff's testimony in chief, defendant moved for a directed verdict in its favor, because of the insufficiency of the evidence to sustain the charge of negligence, and on the further ground that deceased was chargeable with contributory negligence, as a matter of law. The motion was denied. At the close of all the evidence, the motion to direct was renewed and overruled. There was a verdict for the plaintiff, judgment accordingly, and defendant appeals.
I. That the evidence sustains the jury's finding of negligence on the part of the defendant, there is no room for reasonable doubt. The facts admitted, or of which there is competent evidence, tend to show that the train was made up with a box car and pile driver car ahead of the engine, and, without guard or watchman at the front, was being driven over the crossing at a speed of 25 to 30 miles per hour, without warning or signal of its approach, and in violation of a city ordinance limiting its speed within the corporate limits to 6 miles per hour. Defendant put none of its trainmen on the stand; and, except for a witness or two who say they heard a signal whistle, the testimony on the part of the plaintiff, so far as it relates to the plaintiff's allegations of negligence, is practically undenied. So clear is the record upon this issue that we shall take no time for argument or discussion. The trial court did not err in refusing to direct a verdict exonerating the defendant from the charge of negligence.
II. The defendant's main reliance below and in this court is upon the proposition that deceased is chargeable with contributory negligence, as a matter of law. In support of this theory engineers, photographers, and other witnesses were examined, showing the location and surroundings of the crossing, from which it is argued that, if deceased or Murphy had looked west after turning into Seventh Street, they could have seen the approaching train; and upon that assumption, it is insisted that, in failing to discover the danger, they were, of necessity, and as a matter of law, negligent. This contention, that if, by use of engineering instruments or by laying a "straight edge" upon a map or blue print made at leisure after the tragedy is over, it is made to appear that, if the traveler on the highway had looked from some designated station or standpoint, and if the train had then been in the direct line of vision, he could have discovered it and avoided a collision, the court must say, as a matter of law, that his failure to do so is contributory negligence, is one which has been, with great persistence and tireless repetition, urged upon the court during the half century and more of the era of railway development in Iowa; and, with here and there a slight sporadic departure from the settled rule, we have steadily held that, if the traveler is shown to have looked and listened when within reasonable distance of the crossing, the court will not attempt to say, as a matter of law, that he is guilty of contributory negligence because he did not look or listen again at some other designated point, from which he might possibly or even probably have discovered the train. He is not charged with the duty of discovering at his peril every danger which perfect care and caution may reveal to him. The extent of his duty is to exercise the care of a person of average or reasonable prudence; and, it being shown that he did look and listen within a reasonable distance of the crossing, the question whether he ought to have looked or listened again, at some other point or place, is for the jury, and not for the court. See Davitt v. Chicago G. W. R. Co., 164 Iowa 216, 145 N.W. 483; Harper v. Barnard, 99 Iowa 159, 68 N.W. 599; Schulte v. Chicago, M. & St. P. R. Co., 114 Iowa 89, 94, 86 N.W. 63; Willfong v. Omaha & St. L. R. Co., 116 Iowa 548, 90 N.W. 358; Dusold v. Chicago G. W. R. Co., 162 Iowa 441, 447, 142 N.W. 213; Moore v. Chicago, St. P. & K. C. R. Co., 102 Iowa 595, 71 N.W. 569; Hartman v. Chicago G. W. R. Co., 132 Iowa 582, 584, 110 N.W. 10; Mackerall v. Omaha & St. L. R. Co., 111 Iowa 547, 82 N.W. 975; Winey v. Chicago, M. & St. P. R. Co., 92 Iowa 622, 61 N.W. 218; Case v. Chicago G. W. R. Co., 147 Iowa 747, 752, 126 N.W. 1037; Barrett v. Chicago, M. & St. P. R. Co., 190 Iowa 509, 175 N.W. 950; Wolfe v. Chicago G. W. R. Co., 166 Iowa 506, 147 N.W. 901; Platter v. Minneapolis & St. L. R. Co., 162 Iowa 142, 143 N.W. 992; Gray v. Chicago, R. I. & P. R. Co., 160 Iowa 1, 139 N.W. 934; Bruggeman v. Illinois Cent. R. Co., 147 Iowa 187, 123 N.W. 1007; Lorenz v. Burlington, C. R. & N. R. Co., 115 Iowa 377, 88 N.W. 835; Rupener v. Cedar Rapids & I. C. R. & L. Co., 178 Iowa 615, 617, 159 N.W. 1048. The foregoing is by no means an exhaustive list of the precedents in point, but they are sufficient to suggest the gravity of the situation which would be created in our case law if the appellant's revolutionary...
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