Coonley v. Lowden

• Decision Date: 08 February 1944
• Docket Number: 46316.
• Citation: 12 N.W.2d 870,234 Iowa 731
• Parties: COONLEY v. LOWDEN et al.
• Court: Iowa Supreme Court

12 N.W.2d 870

234 Iowa 731

COONLEY v. LOWDEN et al.

No. 46316.

Supreme Court of Iowa

February 8, 1944

Rehearing Denied April 7, 1944. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

C. F. Johnston, of Sheffield, and J. G. Gamble and A. B. Howland, both of Des Moines, for appellants.

James E. Coonley, of Hampton, for appellee.

GARFIELD Justice.

The nominal plaintiff is Coonley as receiver for Borcherding, the injured man and driver of the automobile which collided with the train. Defendants are trustees of the railroad. We will refer to Borcherding as plaintiff and the railroad as defendant.

The collision occurred about 8 a. m. on November 26, 1941, at the intersection of First Avenue, N. W., and the Rock Island tracks in Hampton. Plaintiff, a carpenter, aged 64, was driving his 1932 Chevrolet west. The passenger train came from the north on the east track. There were three tracks at this crossing. Two charges of negligence against defendant were submitted to the jury: failure to signal approach of the train, and its excessive speed. No claim is made that the evidence was insufficient to warrant a finding that the speed of the train was excessive or that the bell required by statute and the whistle were not sounded. The train was almost four hours late.

I Defendant-appellant states its first proposition substantially thus: "The evidence affirmatively establishes that there were no substantial obstructions to the view of Borcherding, and that had he looked to the north at any point within 125 feet of the crossing, he must have discovered the approaching train. Under such circumstances, his testimony that he looked but did not see the train convicts him of contributory negligence as a matter of law."

The record, viewed in the light most favorable to plaintiff, does not support defendant's contention that there were no substantial obstructions to plaintiff's view. For five years plaintiff had lived a little over a block east of the crossing in a house facing east. The crossing is near the northwest edge of Hampton. Only about six houses are west of the tracks. Plaintiff had not driven over this crossing very often. He generally used the crossing a block south, on paved primary highway 10. The street in question is graveled. Aside from plaintiff's house, in the southeast corner of the block, there are three houses in that block facing the north side of the street on which plaintiff drove. In the southwest corner of the block is the Windelow house, about 150 feet east of the railroad. West of the Windelow house and parallel to the railroad is a north and south street extending south to highway 10. West of this street is railroad ground on which are the depot and other railroad buildings.

152 feet north of the center of the crossing and just east of the track is a motor car house, 8X7 feet and 6 feet high. 32 feet north of this shed is the signal maintainer's office and toolhouse, 20X10 feet. Plaintiff estimated the height of this building at 14 to 15 feet. Defendant's section foreman testified it measures 12 1/2 feet high. Ten feet north of this building is a toolhouse, 16X10 feet by 11 feet high. 175 feet north of the crossing, about even with these buildings, the track turns to the northwest. These buildings therefore obstruct the view of a train from the north much more than if the rails continued on more nearly to the north. Less than 100 feet south of the crossing and just east of the track was the passenger depot, about 22 feet high, which obstructed the view to the south.

Traveling west, the view of the railroad to the northwest is partially obstructed by two good sized trees southwest and south of the Windelow house. There was a pile of wood 10 feet high west of this house. There is much testimony regarding weeds 4 to 6 feet high, bushes and brush on railroad ground west of the Windelow house, that obstructed plaintiff's view. "The weeds were all around there on the railroad ground." Some of the bushes were about 15 feet high. 20 to 25 feet east of the track and about 15 feet north of the sidewalk on the north side of the street, a section worker's model A Ford was parked, parallel to the sidewalk. Testimony for plaintiff is that the section worker's automobile obstructed the view, partly because the ground on which it stood was 1 1/2 to 2 feet higher than the road.

Plaintiff testified that he drove about 10 miles an hour; he could stop his car in about 10 feet; his motor made no particular noise; the south window of his car was open a little; his north window was half open, his car windows were clear. "As I left my house I was looking for trains. I was listening for trains from the time I left the house until the accident." He heard no bell, whistle or other warning at any time. (At least four presumably disinterested witnesses also so testified.)

As he came out from behind the Windelow house plaintiff looked to the northwest. Bushes and weeds obstructed his view. Plaintiff testified: "There was a lot of brush there so you couldn't see that train. *** I am sure that I looked to the north before I got 30 feet from the track. *** did look to the north about as I came up toward this north and south roadway. *** (This would be about 100 feet east of the track.) I didn't see no train. *** After you get out from behind the Windelow house there was weeds there and trees that prevented my view of the tracks at that point. *** As you go further west them buildings prevent you from having a clear view of a train coming around that curve from the northwest."

Plaintiff and his son both testified that the first clear, unobstructed view to the south was from a point about 30 feet east of the crossing and the first clear view to the north was from 15 to 20 feet east of the crossing. "It was about 15 feet off from the track, some place around there." Plaintiff testified: "As I came up to the crossing, I looked south first. There wasn't any train coming from that direction. I looked north, and I was about 15 feet from the track and I seen the train *** a little less than 100 feet away. *** I don't know what I did next *** I know I turned my car to the south a little bit. *** I don't have any recollection of what happened from the time I saw the train until I came to, underneath the automobile." Plaintiff's testimony is that he looked north the last time as soon as his view in that direction was unobstructed. The train struck the right rear of the car which came to rest about 50 feet south of the crossing. Plaintiff was seriously and permanently injured.

Three important witnesses for defendant, paid by its claim investigator to make observations two days after the collision, testified that from a point about 75 feet east of the crossing the three railroad buildings along the track were a substantial obstruction to the view to the northwest.

In general, we have held that where the view of the railroad is obstructed or where there are diverting circumstances, the question of contributory negligence is usually for the jury. In Artz v. Chicago, R. I. & P. R. Co., 34 Iowa 153, 160, 161, through Cole, J., this court said:

"We have given to the cases upon this subject, in the different States, a somewhat extended examination, and almost without exception they concur in holding, that where a person, knowingly about to cross a railroad track, may have an unobstructed view of the railroad, so as to know of the approach of a train a sufficient time to clearly avoid any injury from it, he cannot, as a matter of law, recover, ***. (Citing numerous cases.)

"But, if the view of the railroad, as the crossing is approached upon the highway, is obstructed by any means, so as to render it impossible or difficult to learn of the approach of a train, or there are complicating circumstances calculated to deceive or throw a person off his guard, then, whether it was negligence on the part of plaintiff or the person injured, under the particular circumstances of the case, is a question of fact for the jury: ***." (Citing many cases.)

The above statement has been frequently reiterated by many different courts. For seventy years we have adhered to the rule of the Artz case. See, for example, Winey v. Chicago, M. & St. P. Ry. Co., 92 Iowa 622, 625, 626, 61 N.W. 218 (opinion by Deemer, J.); Bush v. Chicago, R. I. & P. R. Co., 216 Iowa 788, 793, 247 N.W. 645 (by Mitchell, J.); Markle v. Chicago, R. I. & P. R. Co., 219 Iowa 301, 305, 257 N.W. 771 (Kintzinger, J.). See, also, Selensky v. Chicago G. W. R. Co., 120 Iowa 113, 117, 94 N.W. 272 (McClain, J.). Applying this rule to this case, the question of contributory negligence was for the jury.

A traveler approaching a railroad must look when by looking he can see. A traveler is required to look for approaching trains within a reasonable distance from the crossing, but not at any particular place nor at all points. It is ordinarily for the jury to determine whether he selected a proper place for making observation and otherwise used ordinary care for his safety. When the jury could find that a traveler looked within a reasonable distance from the crossing, a court will not ordinarily say, as a matter of law, he was guilty of contributory negligence because he did not look again from some other designated point from which he might possibly or probably have discovered the train. That some other course might have been better or safer or have avoided the collision does not establish, as a matter of law, contributory negligence. A plaintiff is not to be judged by what might now appear to have been the safer course. The law does not require perfect care, but only ordinary care under the attendant circumstances. Nor does the law specify precisely what must be done in the exercise of...