Chicago Great Western R. Co. v. Biwer

• Decision Date: 07 August 1920
• Docket Number: 5548.
• Parties: CHICAGO GREAT WESTERN R. CO. v. BIWER.
• Court: U.S. Court of Appeals — Eighth Circuit

266 F. 965

CHICAGO GREAT WESTERN R. CO. v. BIWER.

No. 5548.

United States Court of Appeals, Eighth Circuit.

August 7, 1920

Fred P Carr, of Des Moines, Iowa, George T. Lyon, of Dubuque, Iowa and Clifford V. Cox, of Des Moines, Iowa, for plaintiff in error.

M. E Geiser, of New Hampton, Iowa (Lee Elwood, of Elma, Iowa, and Hurd, Lenehan, Smith & O'Connor, of Dubuque, Iowa, on the brief), for defendant in error.

Before CARLAND and STONE, Circuit Judges, and JOHNSON, District Judge.

JOHNSON District Judge.

The plaintiff in error assigns the refusal of the trial court to direct a verdict in its favor as error, based upon the contention that the plaintiff below was guilty of negligence as a matter of law in (1) approaching the point of collision at a rate of speed of 8 to 12 miles per hour; (2) failing to still the noise of his automobile, so that he could have heard the approaching train.

The plaintiff in error invokes the application of the familiar rule -- stop, look, and listen before going upon a railroad track at a highway crossing. The defendant in error claims the facts take the case out of the rule, or at least that the matter of the negligence of the plaintiff below was for the jury.

The plaintiff below owned and operated a garage in the town of Elma, Iowa. The garage was about 200 feet a little north of east of the railroad crossing. The garage faces west on Busti avenue. The line of railroad of the defendant company runs through the town in a slightly northwesterly and southeasterly direction. At the crossing there is a switch track immediately east of the main line. A few feet north of the crossing east of the main line there are two switch tracks. Of these two switch tracks, the east track is called the loading track, and the west track is called the cut-off track. There is a platform east of the loading track, about 200 feet north of the crossing

At the time of the accident a freight car was standing on the cut-off track just beyond the frog of the two switch tracks, probably about 70 feet from the crossing. One, perhaps two, freight cars were standing on the loading track in the neighborhood of the platform. The exact number of cars on the switch tracks at the time of the accident, in the vicinity of the platform and north of the crossing, is in dispute. Whatever the number, they were sufficient to cut off the view of the main line north of the car near the switch frog, except at one point referred to by the plaintiff in his testimony, and also by other witnesses in their testimony. Immediately north of the platform and east of the loading track were some coal sheds and a cement house, extending north probably about 100 feet, which obstructed a view of the main line from the east side.

Omitting immaterial matter and repetition, plaintiff testified in his own behalf substantially as follows:

I lived at Elma, Iowa, in April, 1917. I was doing a livery business at that time. Mr. Oldham came and asked me to take him out west of town. I started out with him in an Overland car. It was in good condition. Mr. Oldham got into the car, and I backed out of the garage to the north, and came around to the south, before I turned west and started to drive towards the railroad crossing. I looked to the south, to see if things were clear. I could see the tracks for half a mile or so, and there were no trains in sight. As I drove towards the crossing, I kept looking to the north. I paid attention to see whether or not a train was coming. After I had started towards the railroad track, there was one point where I could see between the cars across the track. That point was probable a couple of hundred feet north of the railroad crossing. There was no train on the main track at that time. As i drove on further, I kept watching, and when I got close up I began to listen. North of the crossing there were box cars. Before I started away from the garage, I didn't know that my view would be obstructed. As I was 10 feet or so away from the main track, this train shot out from behind a box car. When I first saw it, it came shooting out from behind a box car, which stood on the track east of the main line. The first side track is about 8 feet east of the main line. There was no point, except the one point I have testified to, where I could see the main line north of the first box car. From the time I left the garage until I got onto the crossing I was watching all the way. When I got to the main line, a train shot out from behind a box car. I had my foot on the clutch and brake, and reversed the car the first thing I did. When I approached the track, I did all I could to stop, and reversed before I got to it. The train hit the front of the car. I didn't see the train until I was 8 or 10 feet from the main track. I was paying attention, and didn't hear the train whistle nor the bell ring. There was no signal at all.

On cross-examination:

The tracks of the defendant company are probably 210 feet from the door of my garage. The situation has been the same during the two years that I occupied the garage prior to the accident. During these years trains of the defendant railway frequently passed in both directions, and some of the trains, both passenger and freight, did not stop at Elma, and went through there pretty lively; but I seldom saw them go through so fast without giving any signal. I have at times seen both passenger and freight trains come into Elma without giving signals, and trains go through the town quite rapidly. When I left the garage, I backed out and started-- after I got turned around--up to the crossing. I started in low and intermediate, and went into high when I was 60 or 80 feet from the garage. The railroad crossing is some little distance elevated above the level of the road coming out of the garage, probably 4 1/2 feet above the level of the road. The brakes were in perfect shape. After I got on my way towards the crossing in high speed, I was going probably about 10 miles an hour. When I got close to the track, I was going about 8 miles. The top was on the automobile, and it had a wind shield. The car made some noise. After I left the garage I saw that there was no train from the south, and was watching and paying all my attention for a train from the north, having in mind that a train might be along any time. If there are no box cars in the way, you ordinarily have a view down the road for half a mile. As I approached the crossing, I saw my view was obstructed. I kept on driving, with the idea that I could see through. There was an opening where I could see across the main line. It was probably 200 feet north of crossing. The opening was probably 10 feet. At that time I was about 80 feet from the crossing. I then proceeded on at 10 miles an hour, looking for another place where I could see, and found no other place, until I got within 10 or 15 feet of the track. I found no other place I could see through, until I was 8 or 10 feet or so from the track, running about 10 miles an hour. I saw the train when I was about 10 feet from the main track. I did everything I could to stop, but was not able to stop before getting on the main line. At the time of the accident I did not hear the train before I saw it. I did not hear any one call to me to look out for the train. It was a still day as far as I remember; there was no other noise about the yard as I started to cross the tracks, except the noise that the machine made and whatever noise the train made. I was listening as I approached the tracks, and did not hear the noise or rumbling of the train until it came out from the box car. As I approached the track I was trying all the time to get a view of the main line, and to see if a train was coming. I knew that, if a through train was coming, it would be on the second track. I was unable at any time to get a view of the main line until I was from 8 to 12 feet the main line.

Mr Oldham, who was riding with the plaintiff at the time of the accident, was called as a witness, and corroborated the testimony of the plaintiff. The plaintiff called also a number of other witnesses, who were in the village at the time of the accident, and who observed the approaching train. None of them heard the bell ring or the whistle sound. They estimated the speed of the train variously from 25 to...