Carter v. Sioux City Serv. Co.

• Decision Date: 11 March 1913
• Citation: 141 N.W. 26,160 Iowa 78
• Parties: CARTER v. SIOUX CITY SERVICE CO. ET AL.
• Court: Iowa Supreme Court

160 Iowa 78

141 N.W. 26

CARTER

v.SIOUX CITY SERVICE CO. ET AL.^d1

Supreme Court of Iowa.

March 11, 1913.

Appeal from District Court, Woodbury County; F. R. Gaynor, Judge.

This is an action for personal injuries. The plaintiff is the widow and administratrix of one M. W. Carter. Carter was a conductor or foreman in charge of a switching train of the Chicago, St. Paul, Minneapolis & Omaha Railroad Company. While engaged in transferring a train from one yard to another in Sioux City, his train came in collision with a street car of the defendant the Sioux City Service Company, and he was killed as a result of the accident. The defendant Stevens was the conductor of the street car. There was a verdict and judgment against both defendants, and they appeal. Affirmed.J. L. Kennedy, of Sioux City, for appellant Sioux City Service Co.

J. W. Hallam, of Sioux City, for appellant Stevens. Jepson & Jepson and Henderson & Fribourg, all of Sioux city, for appellee.

EVANS, J.

The accident occurred about 9:30 p. m. on the night of December 14, 1909, a cold and stormy night. It occurred on Iowa street, which was one of the main streets of the city between Morningside and the city proper. Iowa street runs north and south. The street car in question came from the south. The railway train came from a general northeasterly direction, but turned due west as it approached Iowa street. For the distance of nearly one block up to the point of collision the freight train was moving due west from east. Across Iowa street running east and west the company was maintaining 12 parallel “stub” tracks. These covered an area in width of about 150 feet, extending from Third street south, Third street being an east and west street lying immediately north of the place of collision. The following plat will aid in an understanding of the record:

IMAGE

It will be noted from the diagram that the parallel tracks in question number from 1 to 12 beginning at the south side. The collision in question occurred at the intersection of track 11. On the night of the accident these tracks were largely occupied by standing freight cars extending up to the sidewalk line. This was true of tracks 10 and 12. Track 11, however, was open. As the street car approached the tracks from the south on the night in question it was stopped while its conductor proceeded ahead over the tracks as far as track 9. From track 9 the conductor could see for a distance of 15 or 20 feet from the street along track 11. He neither saw nor heard any sign of an approaching train, and upon his signal the street car came forward. As it passed track 9 the conductor stepped aboard while the car was moving. As track 11 was closely approached the freight train coming from the east was seen. It was too late to stop the street car, and it was hastened across. The freight train collided with the rear vestibule; both cars being derailed thereby. The freight train was made up of 10 empty cars being pushed in front of an engine, and being transferred from one yard to another; the ultimate purpose being to distribute and “spot” them at various places where they were to be loaded with merchandise for shipment. The train exhibited no lights except the lanterns of men on top of the cars. For the purpose of lookout and signals, two men were stationed on top of the westernmost car each with a lantern, and another man was stationed on top of a car near to the locomotive for the purpose of relaying signals in passing around curves. The decedent was one of the two who were stationed on top of the westernmost car. He was in complete charge of the crew and train and of the making up of the same. By reason of the collision the decedent was thrown to the ground from the car, and received injuries thereby from which he died in a few hours. Other points will be stated in their appropriate place in the discussion of the various features of the case which are presented for our consideration. Eighty-nine formal errors are assigned for reversal by appellant. These are presented in still larger number in points in the brief. Manifestly we cannot follow the argument through so many details, but must content ourselves with dealing with the proper subjects involved in the various groups of exceptions.

[1] 1. Was there sufficient evidence of the negligence of the conductor Stevens to go to the jury on that question? It is the contention of the defendants that no negligence was shown. The place was one of manifest inherent danger. The night was dark and cold. Freight cars lined the street at this point. The car stopped before entering upon the intersection. It moved upon signal of the conductor as given from track No. 9. The conductor could have walked on to track No. 11. This was free from standing freight cars, and was therefore open for a passing train. It is his contention that he was not legally bound to follow such course, nor to cross any particular track, and especially so because his car after entering upon the tracks was in constant peril upon one track as much as upon another. Even the standing cars might be kicked by a locomotive at the further end of a train. He also contends that he could see from track 9 along track 11 for a distance of 20 or 30 feet in either direction, and that he could see no further than that if he had stepped upon the intersection at track 11. We think the question was clearly for the jury at this point. The jury could properly find from all the circumstances confronting this defendant at the time that, if he had taken the intersection at track 11 before signaling his car, he would have discovered the danger in time to prevent the accident. It surely could find that, if he had stepped upon the intersection on track 11, he would have discovered the oncoming train at a greater distance than 20 or 30 feet. Granting that he was not bound as a matter of law to cross any track in advance of his car or to do any certain thing, he was bound to exercise reasonable care, and it was for the jury to say whether in the exercise of reasonable care under the circumstances surrounding him he did all that he ought to have done. The jury found that he did not, and the evidence warrants the finding.

[2] 2. Was the decedent guilty of negligence on his own part which contributed to his injury? This is a crucial question, and is not without its difficulties in this record. As already indicated, the decedent was in full charge of the train, and clearly he was responsible for the manner in which the train was made up and for the manner of its operation. The night was cold and the rails were frosty. Each car was equipped with an air brake, but none of these air brakes were coupled. The only brake, therefore, in use upon the train was that of the engine. The train so made up was being moved through the city for the distance of about one mile. As already indicated, it carried no lights except the lanterns in the hands of three men. By reason of the curve in the track and of the height of the standing cars on the other tracks and of the fact that the lanterns were carried at about the height of the knee, they served to give but very brief warning of the approach of the train to the crossing, even though a flagman had stood upon the intersection. Carter and his brakeman, Stickle, were upon the westernmost car. As they approached the crossing they saw the light of the street car through its transoms from a point south of the tracks, and observed its approach towards track 11 without further stopping. It appears from the evidence of Stickle as a witness for the plaintiff that the approach of the street car was a subject of conversation between them. The fact that they could see only the transoms of the street car indicated that their own lanterns would be at that time below the line of vision of the persons in charge of the street car. The freight train was moving at the rate of about five or six miles an hour. There was no flagman in sight upon the intersection. The decedent gave no signal to the engine until his car had reached the line of the street, nor did he display his lights or attempt any other signal to the street car conductor. The defendants contend that the decedent was negligent as a matter of law. This contention is based upon two principal grounds: (1) That he was running his train in violation of section 2082 of the Code, and was therefore guilty of a misdemeanor, and that such violation contributed to the accident; and (2) because he saw the approach of the street car toward the intersection, and failed to stop as soon as he could have stopped and failed to display signals within the range of vision of the street car conductor.

Was the decedent guilty of a misdemeanor? Chapter 18, Acts 23d G. A., appears in the Code as sections 2079-2083. This chapter carried the general subject of “Automatic Couplers and Brakes.” The first four sections thereof are as follows:

“Sec. 2079. On New or Repaired Cars. No corporation, company or person operating any line of railroad within this state, or any car manufacturer or transportation company using or leasing cars therein, shall put in use any new cars or any old one that has been to the shop for general repairs to one or both of its drawbars, that is not equipped with automatic couplers so constructed as to enable any person to couple or uncouple them without going between them.

Sec. 2080. On All Cars. After January 1, 1898, no corporation, company or person, operating a railroad, or any transportation company using or leasing cars, shall have upon any railroad in this state any car that is not equipped with such safety automatic coupler.

Sec. 2081. Driver Brake on Engines. No corporation, company, or person operating any line of railroad in this state shall use any locomotive engine upon any railroad or in any railroad yard in the state that is not equipped with a proper and efficient power brake, commonly called a ‘driver brake.’

Sec. 2082....