Butters v. Chi., M., St. P. & P. R. Co.

• Decision Date: 24 June 1932
• Docket Number: No. 41318.,41318.
• Citation: 214 Iowa 700,243 N.W. 597
• Court: Iowa Supreme Court
• Parties: BUTTERS v. CHICAGO, M., ST. P. & P. R. CO.

214 Iowa 700

243 N.W. 597

BUTTERS

v.CHICAGO, M., ST. P. & P. R. CO.

No. 41318.

Supreme Court of Iowa.

June 24, 1932.

Appeal from District Court, Dubuque County; P. J. Nelson, Judge.

Action by the plaintiff, a minor less than 2 years of age, through her father as next friend, for personal injury resulting from the car in which she and her parents were riding as guests of the driver being driven into the side of a moving train at a crossing in the incorporated town of Zwingle. Trial to the court and a jury. Directed verdict for the defendant. Plaintiff appeals.

Affirmed.Kenline, Roedell, Hoffmann & Tierney, of Dubuque, for appellant.

Hughes, O'Brien & Faville, of Des Moines, and Brown, Lacy & Clewell, of Dubuque, for appellee.

WAGNER, C. J.

A narrow gauge line of railroad belonging to the defendant company runs east and west through the incorporated town of Zwingle, a town of 149 inhabitants. This line of railroad connects the towns of Bellevue and Cascade. United States highway No. 61 runs north and south through Zwingle. The accident in question occurred at the crossing of said highway with the railroad. Each day two trains go east and two go west over this line of railway; all trains, according to schedule, arrive at Zwingle in the daytime, except one going west, which is due at Zwingle at 7:15 p. m. The distance between Bellevue and Cascade is 35.6 miles, and the schedule time for making said distance of said train going west is three hours. The parties occupying the automobile at the time in question reside in East Moline, Ill.

It appears from the record, that on the 6th day of September, 1930, Mrs. Butters and the baby were at Colesburg, Iowa, and that Butters and Seefeldt, in the “Model A Ford Coupé Pickup” belonging to and driven by Seefeldt, made the trip on U. S. No. 61 from Moline to Colesburg, where they got Mrs. Butters and the baby and began their return trip from Colesburg to Moline on the same highway. They arrived at Zwingle just as the train going west was pulling out of the town. Seefeldt drove the car, and Mr. and Mrs. Butters occupied the same seat with the driver, the baby sitting on the mother's lap. The automobile was in perfect running condition and was fully equipped with lights, which complied with the statute. It was dark before the automobile party arrived at Zwingle. The pavement on the highway was dry and 18 feet in width. The defendant company maintains in the town both a main track and a switch track; the main track being from 13 to 15 feet south of the switch track; on the right-hand side of the street going south, in close proximity to the railroad is the usual cross-buck sign, with the words “Rail-Road Crossing” conspicuously painted thereon; on the right shoulder of the highway, 380 feet north of the main track, is a railroad disc sign two feet in diameter, with the letters “R. R.” and two black stripes underneath; on the right shoulder, 556 feet north of the main track is a conspicuous sign denoting residence district and that the speed limit is twenty-five miles per hour; suspended in the center of the street 80 feet north of the switch track there was a 100-watt candle power electric light, and in the center of the street 98 feet south of the south track is another one of the same description; there are other street lights, both to the north and south of the ones just mentioned. The depot stands 105 feet east of the center of U. S. highway No. 61; on the east side of said highway, north of the tracks, there is an open space and a street; on the east side of said highway and the north side of said street stands a building. The distance from said building to the track is 90 feet. There was no obstruction of the view toward the east after getting past the store building; on the west side of the highway in question stands a building about 20 feet wide. Thus it is seen that there was no obstruction to the view toward the east to one coming from the north after getting 90 feet from the crossing, and practically no obstruction to the view toward the west. From the crossing, the highway runs 228 feet straight north and then there is a slight curve to the right, the north end of the curve being 467 feet north of the crossing; this is a five-degree curve. In going north from the crossing, there is an incline, a 6 1/2 per cent. grade, and from the beginning of the curve on northerly the extent of the grade gradually decreases; at the point 228 feet north of the crossing, the highway is 13.2 feet higher than at the track; from the railroad track south the surface of the ground is level for a distance of about 200 feet, and from that point there is a 6 per cent. grade to the top of a hill.

On the evening in question, the train came from the east, whistling as it entered the town. The engine pulled across the highway so as to leave the passenger and baggage car at the depot. The train was there a few minutes, for the exchange of mail, when it began to pull out. The evidence establishes the fact that the whistle was not sounded nor the bell rung as the train began to move from the depot. The automobile party came from the north, traveling from 30 to 40 miles per hour; at a distance of about 150 feet north of the tracks they met an automobile going north. The automobile party continued in a southerly direction with no material decrease in speed, and struck broadside the tenth car from the engine of the moving train. Seefeldt and Butters, who were in the automobile at the time in question, and both of whom gave testimony in behalf of the plaintiff, testified that they did not see the train or any obstruction across the highway ahead of them until just an instant before the collision. The plaintiff was seriously injured as a result of the collision. There is virtually no conflict in the testimony, and the foregoing sufficiently states the facts which are necessary for the determination of the questions presented.

At the close of the evidence, the defendant presented a motion for a directed verdict, basing the same, among other grounds, upon the following, that upon the entire record there is no evidence of actionable negligence upon the part of the defendant, that there is no evidence of actionable negligence upon the part of the defendant which was the proximate cause of the collision, and that, upon the entire record, the plaintiff has failed to sustain the burden of proof required, and, if the case were submitted to the jury and verdict rendered in favor of the plaintiff, it would be the duty of the court to set the same aside. This motion was sustained. This ruling by the trial court presents the primary complaint urged by the appellant.

[1][2] The plaintiff urges that the defendant failed to continuously ring the bell on the locomotive engine attached to said train until said crossing was passed. The evidence fails to establish any failure to give the statutory signals before and at the time when the engine passed over the crossing; when the train had stopped, the engine was a hundred feet or more west of the highway in question, the passenger coach at the depot and the intervening cars across the highway at a right angle thereto. Plaintiff's contention is that the train had not passed over the highway and that it was the statutory duty of the defendant to ring the bell continuously until the entire length of the train had passed over the crossing. In this the plaintiff is in error. Section 8018, Code 1927, provides: “A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed.”

It will be noted that there is nothing said in said section about a train; there is nothing therein mentioned about the crossing being passed by a train; it refers only to an engine operated on any railway. The bell shall be placed on the locomotive engine operated on any railway and shall be rung continuously until the crossing is passed--manifestly, by the engine to which the bell is required to be placed. It must also be borne in mind that contrary to the general rule in this instant case the engine did not collide with the automobile, but, on the contrary, the automobile collided broadside with a car in the rear portion of the train. It is quite obvious that there was no breach of statutory duty on the part of the defendant for failure to ring the bell in starting the train to move from the depot and for failure to continue to ring the same until the entire train had passed over the crossing.

[3] But the plaintiff contends that under the record, the giving of the statutory signals is not sufficient to relieve the defendant from negligence; he contends that the record is such as that a jury should be permitted to say that the crossing is one of unusual danger, and that, if the triers of the fact should find it to be such, then the railroad company in the exercise of ordinary care is required to give notice or warning, other than and in addition to the statutory signals. The evidence conclusively shows that no such additional notice or warning was given, except by the signs hereinbefore mentioned. The plaintiff is correct in his contention that, if the crossing is one of unusual danger, then the defendant, in the exercise of ordinary care, is required to give notice or warning, other than and additional to the statutory signals. The question presented by the instant case is whether, under the facts as shown by the record, a jury should be allowed to find that the crossing is one of unusual danger. In Glanville v. Chicago, Rock Island & Pacific Railway Company, 190 Iowa, 174, at 180, 180 N. W. 152, 155, we said:

“Under what circumstances a...