Chicago, Burlington and Quincy Railroad Company v. King

• Decision Date: 30 November 1964
• Docket Number: No. 17607.,17607.
• Citation: 337 F.2d 510
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant, v. Alfred KING, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

337 F.2d 510 (1964)

CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant, v. Alfred KING, Appellee.

No. 17607.

United States Court of Appeals Eighth Circuit.

October 30, 1964.

Rehearing Denied November 30, 1964.

H. C. Walsh, of Pryor, Riley, Jones & Walsh, Burlington, Iowa, and K. A. Aspelmeier, of Pryor, Riley, Jones & Walsh, Burlington, Iowa, made argument for appellant and filed brief with J. C. Pryor and J. C. Riley, Burlington, Iowa, of the same firm.

Robert E. Dreher, and Kenneth H. Haynie, Des Moines, Iowa, made argument for appellee and filed brief.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and DAVIES, District Judge.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by the defendant Chicago, Burlington and Quincy Railroad Company from a judgment for $118,593.10 entered against it upon a jury verdict in favor of plaintiff Alfred King in an action for damages predicated upon negligence arising out of a collision between a car operated by plaintiff and defendant's train at a country railroad crossing southeast of Harvey, Iowa, about 1:15 p. m. on September 30, 1960. The collision occurred on a north and south country gravel road leading from Highway 92 to the town of Harvey at a point where it crossed the east and west track of the railroad. Plaintiff was driving south. The train was headed west. The road was being used as a detour for traffic normally using Highway 310 which was under repair. Plaintiff was not familiar with the road. There were three conventional railroad warning signs along the road which plaintiff traveled, a state highway warning sign and the crossbuck sign for the Wabash tracks which were some distance north of defendant's track, and the crossbuck sign for defendant's track. There was no train speed limit in effect at the accident location. The company's own rules imposed a 35 miles per hour speed limit. The engineer testified the speed was 30 to 35 miles per hour. The engineer further testified that he saw plaintiff's car when the train was about 180 feet from the crossing, and he immediately took all emergency steps to stop the train but that it was impossible to do so in time to avoid the collision.

Plaintiff passed three men in a parked truck about one-fourth mile north of the crossing. They estimated plaintiff's speed at the time at 40 to 60 miles per hour. They heard the train whistle as it passed the crossing but did not see the collision.

A highway patrolman testified that skid marks left by plaintiff's car as it approached the track were 44 feet in length and that the ordinary reaction time for braking after seeing an object is three-fourths of a second. At 50 miles per hour, 55 feet would be traveled in three-fourths second and that the combined reaction time and skid marks would indicate that plaintiff saw the train when 99 feet from the track. The patrolman further testified, "As you are coming south, to your left is high weeds, uncut brush, several trees of various heights. The visibility angle starts approximately 50 feet north of the tracks."

The evidence with respect to the obstruction of plaintiff's view of the track in the direction from which the train was approaching is in dispute. There is substantial evidence in the form of testimony of disinterested witnesses and photographs in evidence that such view was badly obstructed. Other facts will be set out in the course of the opinion.

Jurisdiction, based upon diversity of citizenship, is established.

The complaint asserts that defendant was guilty of negligence which proximately caused plaintiff's injuries. Defendant admitted jurisdiction and the fact of collision but denied all allegations of negligence and affirmatively alleged that plaintiff's injuries were caused by his own negligence. Plaintiff suffered severe injuries as a result of the collision, including permanent brain injuries. The amount of damages is not here attacked.

The court submitted to the jury the issue of defendant's negligence, proximate cause, plaintiff's contributory negligence and the issue of damages in event the jury found plaintiff entitled to recover. The pleaded specifications of negligence submitted to the jury were:

"1. Failing to signal the approach of the train by sounding a whistle and continuously ringing a bell in violation of § 478.19 of the Iowa Code I.C.A..

"2. Failing to operate the train at a speed which was reasonable and in accordance with due care under the circumstances then and there existing just prior to and at the time of the accident.

"3. Failing to maintain proper warning devices at the crossing in question."

Defendant by motion for directed verdict made at the close of the plaintiff's evidence and renewed at the close of all the evidence challenged the sufficiency of the evidence to support each allegation of negligence submitted and also urged that plaintiff had not met the burden imposed upon him to establish freedom from contributory negligence. Defendant also incorporated its attack upon the sufficiency of the evidence to support a verdict by exceptions to instructions and by motion for judgment n. o. v.

Defendant as a basis for reversal relies upon the following points:

I. The court erred in submitting the issue of whether plaintiff was entitled to the benefit of the Iowa "no eyewitness rule."

II. Contributory negligence on the part of plaintiff has been established as a matter of law and hence the court erred in overruling defendant's motions for directed verdict and judgment n. o. v.

III. The court erred in submitting each of the three specifications of negligence heretofore set out to the jury for the reason that there is no substantial evidence to support any of the specifications.

IV. The court erred in submitting the sudden emergency instruction.

I.

By Instruction 16, the court submitted to the jury the issue of whether there was an eyewitness to the accident under the Iowa no eyewitness rule, and then properly instructed the jury as to the applicability of such rule in event the jury found there was no eyewitness. Defendant excepted to such instruction on the ground "that there was an eyewitness to the accident in question, and there is no justification for giving the instruction nor for the application of the no eyewitness rule." On brief, defendant asserts Instruction 16 should not have been given the jury for the following reasons:

"(1) there is no precedent in Iowa law for the application of this rule in a railroad crossing accident case; (2) the physical facts of this case clearly indicate that the plaintiff failed to exercise due care at and prior to the railroad crossing in question; (3) Engineer Jesse Worth was an eye witness in this case and, therefore, the rule has no application."

Defendant's first contention is without merit. The no eyewitness rule is well-established in Iowa jurisprudence and has been extensively discussed in many cases, among them, Mast v. Illinois Central R. R., D.C.Iowa, 79 F.Supp. 149, 164-173; Chicago, R. I. & P. R. R. v. Lovejoy, 8 Cir., 206 F.2d 77, 81; Hoffman v. Monroe Welding Supply Co., 253 Iowa 591, 113 N.W.2d 237, 240. See Snell, "Eyeing the Iowa No Eyewitness Rule", 43 Iowa L.Rev. 57: "The `No Eyewitness' Rule in Iowa", 6 Drake L.Rev. 101.

In Hoffman, an automobile collision case, the court states:

"The rule is well settled in this state that in the absence of eyewitnesses or of any obtainable evidence as to what the deceased did or failed to do, by way of reasonable precaution for his own safety, at or immediately before his injury, there arises an inference that he, prompted by his natural instinct, was in the exercise of due care for his own safety. * * * The purpose of the rule we have recognized is to avoid any injustice due to the severe burden on plaintiff to plead and prove freedom from contributory negligence in order to recover in this type of action when there are no survivors or witnesses who can tell what the plaintiff\'s decedent was doing immediately prior to the accident. In cases such as the one before us, if the driver suffered retrograde amnesia or could remember nothing about the accident and no other person saw plaintiff\'s decedent, it would be impossible to carry that burden unless some inference such as the no-eyewitness rule were indulged. We have made it quite clear, while such inference of due care is not evidence, it may be considered by the jury in its determination of the fact question as to whether the deceased was contributorily negligent. Plaintiff was entitled to have the jury so instructed here. * * *" 113 N.W.2d 237, 240-241.

We find nothing in the Iowa cases to support the contention that the no eyewitness rule is inapplicable in railroad crossing cases to injured operators of the accident automobile. Such cases clearly fall within the spirit and the scope of the rule under appropriate circumstances.

With respect to the second contention, it is true that the no eyewitness rule only raises an inference of due care. In particular situations, evidence of physical facts may be sufficiently strong not only to overcome the inference but to entitle the defendant to a directed verdict. For reasons hereinafter set out in our discussion of the directed verdict issue, we hold that the physical facts in this case do not compel a directed verdict for the defendant.

Was there an eyewitness to the accident? It is not seriously questioned that plaintiff suffered severe brain injuries which wiped out any memory of events leading up to the accident. Hence, plaintiff was not an eyewitness. See Hoffman v. Monroe Welding, supra. The only possible eyewitness to the accident was engineer Worth. The parties stipulated in effect that none of the other members of the train crew were in a position to see the accident. Havener, Chilcote and Fridlington, the three men plaintiff passed about one-fourth mile north of the track, testified that they did not see the accident. Defendant's argument is centered...