Corbett v. Hines

• Decision Date: 31 December 1920
• Docket Number: 33298
• Citation: 191 N.W. 179,194 Iowa 1344
• Parties: MARGARET CORBETT, Executrix, Appellee, v. WALKER D. HINES, Director General of Railroads, Appellant
• Court: Iowa Supreme Court

191 N.W. 179

194 Iowa 1344

MARGARET CORBETT, Executrix, Appellee, v. WALKER D. HINES, Director General of Railroads, Appellant

No. 33298

Supreme Court of Iowa, Des Moines

December 31, 1920

OPINION ON REHEARING DECEMBER 15, 1922.

Appeal from Pottawattamie District Court.--EARL PETERS, Judge.

ACTION at law, to recover damages for the death of Philip James Corbett, deceased. There was a verdict and judgment for plaintiff, and the defendant appeals.

Affirmed.

Hughes O'Brien & Taylor and C. R. Sutherland, for appellant.

H. L Robertson and John M. Galvin, for appellee.

WEAVER J. STEVENS, C. J., EVANS, PRESTON, ARTHUR, and FAVILLE, JJ., (specially concurring.)

OPINION

WEAVER, J.

On May 18, 1918, Philip James Corbett, a boy 16 years of age, was killed by defendant's train upon a street crossing in the town of Neola, Iowa, and this action was brought to recover damages in behalf of his estate. There was a judgment for the plaintiff, and defendant appeals. Upon the original submission of the appeal, an opinion was handed down reversing the judgment below. 180 N.W. 690. A petition for rehearing was thereafter sustained, and the cause was resubmitted, with additional arguments by counsel on either side. A somewhat minute description of the scene of the accident will aid materially in arriving at the merits of the case.

The defendant's railway extends east and west through the town of Neola, and through the middle of Blocks 26, 27, 28, 29, and 30 (numbering from west to east) upon the town plat. Along this course are three parallel tracks, the middle one of which is the main track; the one on the south is a passing track; and the one on the north is known in the record as the "north track." Extending east and west along the north side of these blocks is Front Street, which is intersected by Second Street, extending north and south between Blocks 29 and 30. As will be seen, Second Street crosses the three tracks of the railway at right angles, midway of the blocks last named. Fourth Street is parallel to and next west of Second. As one goes east from Fourth Street on Front Street to Second, and turns south to the railway crossing, there is a large livery barn on the corner to his right. This barn, with an added "lean-to," occupies the entire space between Front Street and the railroad right of way, a distance of 76 feet, and extends along Front Street to the west, 80 feet. From the southeast corner of the barn to the north rail of the north track is 8 feet, 4 inches; and from the same corner to the north rail of the main track is 18 feet, 11 inches; and allowing 4 feet, 8 inches, for the standard gauge of the north track, there is left between the two tracks, north and main, a space of but 5 feet, 11 inches. Moving south on Second Street, the driver of an automobile could not see along the railway track to the west until he reached a point where, from the seat of his car, he could get a view past the barn, variously estimated at from 24 to 35 feet north of the main track. There were also one or more idle freight cars on the north track to the right, adding something to the screen in that direction. The crossing was guarded by a watchman and gate; but, as we understand the record, these were employed during the daytime only.

The deceased was the employee of one Miller, agent in charge of the local Standard Oil station, and as part of his duties drove an oil truck, and frequently passed over this crossing. On May 12, 1918, deceased and Miller drove an auto into the country south of Neola, on a fishing excursion. As they returned, early in the evening, a freight train was coming into the station on the south or passing track. To avoid this obstruction, they turned west to Fourth Street, and thence north over the railway crossing ahead of the freight train, and then to Miller's home. Leaving Miller there, the boy, with a companion, one Burns, drove east on Front Street, intending to turn south on Second. As they reached the corner, deceased stopped his car, or slowed it down sufficiently to let Burns alight, and then proceeded southward toward the crossing, at a speed variously estimated at from 10 to 15 miles per hour. According to two witnesses, he slowed his speed as he approached the tracks, but he does not appear to have stopped. It was not yet dark; the crossing gate was open; and the freight train on the south track was cut in two, and an opening made for passage along the course of the street. Deceased, continuing his progress south, had nearly crossed the main track, when the rear part of his car was struck by the engine of a passenger train, moving eastward at a speed estimated at from 50 to 60 miles an hour. The force of the collision was such as to throw the auto clear of the track, and Corbett was instantly killed. In this action to recover damages, the defendant is charged with negligence in operating its train over the crossing at a dangerous rate of speed, and in failing to give the usual warnings of its approach. As said by us on the former hearing:

"The sufficiency of the evidence to carry these issues to the jury is not questioned. The sole contention of appellant is that the evidence conclusively established contributory negligence on the part of decedent."

We shall, therefore, limit our consideration to the single inquiry whether the case made by the plaintiff justified the trial court in submitting this issue to the jury.

I. To answer this question in the affirmative, it is not necessary to find that deceased exercised the highest degree of care. It is sufficient if, from all the proved facts and circumstances, the jury could fairly find that he acted with the care and prudence which may reasonably be expected from the ordinary person of his age, experience, and capacity. With this general rule in mind, let us consider the leading circumstances relied upon by the appellee to sustain the action of the trial court in refusing to direct a verdict for the defendant. They may be enumerated as follows: (1) The youth of the deceased, who cannot be charged, as a matter of law, with the duty of exercising a greater degree of care, prudence, or judgment than is possessed by the average boy of his age and experience, under like circumstances. (2) The fact that he was not a trespasser, but was exercising the common right of a member of the public upon the highway. (3) The conceded fact that, as he moved east on Front Street and south upon Second, and until he was almost upon the track, his view to the southwest was completely obstructed by the buildings on the north half of the block. (4) That this obstruction was increased by detached cars on the north track. (5) That the obstructions had a natural tendency to deflect the waves of sound coming from the approaching train, and to lead to a mistake as to their true direction and distance. (6) The absence of proper signals of the approach of the train tended to deceive and mislead the deceased. (7) That the crossing gate was open and gave silent assurance of safety. (8) That the opening of the freight train on the south track for the crossing was an invitation to its use. (9) That the sudden plunging of the train through the yard at such extraordinary speed may well have served to frighten and temporarily incapacitate the boy for the exercise of the highest degree of judgment. (10) That he had the right to place some degree of reliance on the railroad company's observance of its duty to operate its train over the crossing with due regard to the safety of others rightfully using the highway. Without protracting this opinion to discuss all of these propositions severally, it may be said that all are matters having a natural and pertinent relation to the question of reasonable care in the premises. The conclusion is not to be found by fixing our minds on any one fact or circumstance and saying that, because thereof, reasonable and fair-minded men cannot disagree upon the proper verdict. It is to be reached, rather, by a comparison and weighing of all the testimony, by linking circumstance with circumstance, by deductions and inferences fairly to be drawn from the entire case, viewed in the light of the common knowledge and common experience of mankind; and this, under all ordinary conditions, is the exclusive province of the jury.

II. There are two or three features above mentioned which we think should be given special attention. Among these is the undisputed fact that, as deceased approached the tracks, the crossing gate on the main track and the freight train on the south track were both open, apparently indicating a safe passage for the use of travelers on the highway. As deceased approached the crossing, seeing this open way and hearing no signal or warning from the train, it would not be an unnatural assumption on his part that he could safely proceed. Moreover, knowing, as he must, that the divided parts of the freight train were liable at any time to close the gap, preparatory to moving onward, ordinary care on his part would require some attention to that possibility. If all those circumstances should appeal to the minds of the jury as tending to show that the deceased was not guilty of contributory negligence, we think it would not be within the province of the court to overrule such conclusion.

III. The concession that the jury could properly find that defendant did operate its train over the crossing at excessive or reckless speed, and without giving the proper warning signals, has an important bearing, not alone as showing defendant's negligence, but also upon the question of contributory negligence. It is not a sufficient answer to this suggestion to say that, even if defendant was negligent, deceased was still bound to use reasonable care for his...