Case v. Chi. Great W. Ry. Co.

• Decision Date: 16 June 1910
• Citation: 147 Iowa 747,126 N.W. 1037
• Parties: CASE v. CHICAGO GREAT WESTERN RY. CO.
• Court: Iowa Supreme Court

147 Iowa 747

126 N.W. 1037

CASE

v.CHICAGO GREAT WESTERN RY. CO.

Supreme Court of Iowa.

June 16, 1910.

Appeal from District Court, Black Hawk County; Chas. E. Ransier, Judge.

Action at law to recover damages for injuries received by plaintiff due to his wagon being struck by one of defendant's trains at a street crossing in the city of Waterloo. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Affirmed.Carr, Carr & Evans and J. E. Williams, for appellant.

C. W. Mullan and B. F. Swisher, for appellee.

DEEMER, C. J.

While driving a covered milk wagon along what is known as Franklin street in the city of Waterloo, plaintiff was struck by one of defendant's trains at the crossing of said street, and received the injuries of which he complains. There was no flagman at the crossing and plaintiff claims that the bell on the engine was not rung or the whistle sounded or any other warning given of the approach of the train. He further claims that the train was running at a high and dangerous rate of speed, to wit, from 15 to 20 miles an hour, which speed was unlawful under the ordinances of the city, which fixed the rate within the city at 8 miles per hour; that he both looked and listened for the approach of the train and did not see or hear it, and that notwithstanding due care on his part he was struck and injured. There was a conflict in the testimony upon many of the material points, but the jury returned the following answers to special interrogatories submitted, which answers in view of the conflict in the testimony must be regarded as conclusive. These answers were as follows: “(1) Was the engine bell ringing as the train approached Franklin street? Answer: No. (2) Was the whistle sounded for the station? Ans.: Yes. (3) Was the whistle sounded for the street crossing between the viaduct over the Illinois Central Railway and Barclay street? Ans.: Yes. (4) At what rate of speed was the train moving at the Walnut street crossing? Ans.: 15 to 20 miles.” That these answers show negligence upon the part of the defendant is practically conceded; but it is strenuously argued in many different ways that under the undisputed testimony as applied to familiar rules of law plaintiff was guilty of contributory negligence, and that there should have been a verdict for the defendant. This contention calls for a brief recital of the testimony from plaintiff's standpoint.

Franklin street is one of the important streets of the city. It is near the business portion, is paved, and crosses defendant's tracks between Sixth and Seventh streets. Franklin street runs east and west, and defendant's track runs a little east of north from its junction with Franklin street. Upon the block immediately north of Franklin street and west of Seventh, there is a lumber shed and office, a lumber yard and coal shed and three dwellings, all obstructing the view of a train coming from the north on defendant's tracks. It is impossible, as we understand it, to see a train coming from the north in passing from the east side of Seventh street until one gets within from 15 to 20 feet of the east rail of defendant's main line of track; but it is conceded that at a point 17 feet from this east rail it is possible to see a train coming from the north a distance of 477 feet. Just prior to receiving his injuries plaintiff was driving westerly along Franklin street toward the railway tracks, his team moving at a rapid walk. When he aproached the fill upon which the track was laid, which is shown to be between four and five feet above the grade of the street at the crossing, he slowed his team down, and it was walking slowly as he approached the crossing. As he came to the place where he had an obstructed view of the track he, according to his testimony, which has some corroboration, pulled his team to a stop or practically to a standstill, looked northeasterly and along the track and as far as he could see, and listened for the approach of a train. Seeing or hearing nothing he looked down the track in a southwesterly direction for trains which might be coming from the south. None being in sight or hearing in that direction, he proceeded to cross the track, and just as his horses had gotten over the tracks and while his wagon was upon them he heard a train coming from the north, cast his eyes in that direction, and discovered the rapidly moving train within 150 feet of him. He then attempted to back his team off the track, but was unable to do so, and the team and wagon were both struck by the train, one horse killed, the wagon badly broken, and plaintiff thrown out, struck by the locomotive, and badly injured. The Walnut street crossing referred to by the jury was 300 feet north of the one at Franklin street. Two boys were riding on the wagon which plaintiff was driving, one upon the right or north side, and the other upon the left or south side as it approached the crossing. These boys were standing upon steps near the middle of the wagon, and the boy on the right side of the wagon testified that as plaintiff approached the railway crossing he stopped the team; that he (the boy) heard no locomotive whistle and that no bell was rung, and that he did not see the train until just before it struck the wagon, when he jumped and escaped injury. Defendants say, however, there is no testimony that plaintiff slackened the speed of or stopped his team before reaching the crossing; no testimony that he looked to the northward for the approach of a train, or, rather, that although plaintiff testified that he did look and saw no train, his testimony should be disregarded, for that if he did look at the point he said he did he could not help seeing the train, and for these reasons that plaintiff was guilty of contributory negligence as a matter of law and should not recover.In the first place it is not true, as a matter of law, that one must stop his team before crossing a railway track. Whether or not he should do so in any given case is a question of fact for the jury and not of law for the court. Selensky v. R. R. Co., 120 Iowa, 113, 94 N. W. 272;Lorenz v. R. R., 115 Iowa, 377, 88 N. W. 835, 56 L. R. A. 752;Willfong v. R. R., 116 Iowa, 548, 90 N. W. 358, and cases cited. But it is said that under the testimony plaintiff either did not look for the approaching train, or if he looked he must have seen it in time to have avoided the injury, and in either event he was guilty of contributory negligence. Generally speaking the question of contributory negligence in such cases is for the jury. Cummings v. R. R., 114 Iowa, 85, 86 N. W. 40;Schulte v. R. R., 114 Iowa, 89, 86 N. W. 63;Meyer v. R. R., 134 Iowa, 722, 112 N. W. 194,...