Corbett v. Hines, 33298.

• Citation: 180 N.W. 690
• Decision Date: 31 December 1920
• Docket Number: No. 33298.,33298.
• Parties: CORBETT v. HINES, Director General of Railroads.
• Court: United States State Supreme Court of Iowa

180 N.W. 690

CORBETT

v.HINES, Director General of Railroads.

No. 33298.

Supreme Court of Iowa.

Dec. 31, 1920.

Appeal from District Court, Pottawattamie County; Earl Peters, Judge.

Action for damages resulted in a verdict for plaintiff and judgment thereon. The defendant appeals. Reversed.

Weaver, C. J., and Salinger, J., dissenting.Hughes, Sutherland & O'Brien, of Cedar Rapids, for appellant.

H. L. Robertson and John M. Galvin, both of Council Bluffs, for appellee.

LADD, J.

In driving his automobile over defendant's tracks at Neola, it was struck by an east-bound passenger train, and Phillip Jerome Corbett killed. The grounds of negligence alleged in the petition are that: (1) Defendant was operating its train at a dangerous rate of speed; (2) that it failed to ring the bell 60 rods before reaching the crossing, or, as was reasonably required; and (3) that in view of the situation, warnings should have been continuously sounded in approaching Second street, but were negligently omitted. 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. Three parallel tracks of the Chicago, Milwaukee & St. Paul Railway Company extend in an easterly and westerly direction through the middle of blocks Nos. 26, 27, 28, 29, and 30, in the incorporated town of Neola. The middle track is known as the main track, that to the south as the passing track, and the other, the north track. Front street is immediately north of the blocks mentioned, and runs in an easterly and westerly direction. Second street intersects Front street, running north and south, east of block 29 over the tracks, and Third and Fourth streets are to the west in the order named. At the southeast corner of the intersection of Front and Second streets, and at the northeast corner of Block 29 is an old livery barn fronting east on Second street, occupying the ground between the railroad right of way and Front street, a distance of about 76 feet, and along Front street about 80 feet. The main part of the livery barn is 24 feet high, and the lean-to toward the south is 16 feet. The eaves to the north are 14 feet high. Hagarty measured the distance from the barn to the north rail of the north track, 8 feet 4 inches, and to the north rail of the main track, 18 feet 11 inches. The decedent, Phillip Jerome Corbett, was 16 years of age, and was and had been for about 2 years employed by one Miller, an agent at that place for the Standard Oil Company. Its oil tanks and office appear to have been across Second street to the east and south of the tracks. A part of decedent's duty was to drive the oil tank truck, and in doing so he had frequently passed over the crossing, often several times a day.

In the morning of May 12, 1918, decedent and his employer had gone fishing somewhere south of Neola, and, upon their return at about 8 o'clock in the evening, upon reaching Second street, they observed a freight train rolling in on the passing track toward the west, in which direction the automobile proceeded to Fourth street and turned north, crossed the tracks ahead of the engine, and proceeded to Miller's home, and, after dividing the fish, Corbett drove the automobile to Front street and started for home via Second street. A boy named Burns rode with him until near the livery barn, where, as Corbett slowed down, he got off. Decedent turned the corner to the south on Second street, and, upon reaching the main track, his automobile was struck by a passenger train from the west. That his view was completely obstructed until some distance down Second street is conceded. The livery barn was on private property, in which the defendant had no interest, and according to Mayne the distance from the south line of the barn to the center of the north track was 11 feet, and to the center of the main track, 25 feet. The line of vision from a point in the center of Second street 5 feet north of the south line of the barn would pass through the center of the main track 219.5 feet west of the center of the crossing, and from a point 10 feet north of said south line of the building would pass through the center of the main track 132 feet west of the center of the crossing. From a point 30 feet north of the center of the north track the traveler's vision past the corner of the barn would extend 118 feet west of the center of the crossing of the north track, and 75 feet west thereof in looking from a point 35 feet north of the center of the north track. The center of the crossing was 1 1/2 feet west of the center of the street. The freight train had separated at Second street, so as to permit passage, with its engine, about two blocks west of Second street, and there was evidence tending to show that two or three freight cars were standing on the north track about 40 or more feet west of the west line of Second street. Peterson, accompanied by McLyman, had driven a truck over the crossing shortly before, and had stopped about 20 or 30 feet south of the tracks. When on the middle track these men observed the train coming from the west 2 or 2 1/2 blocks away. As Peterson stopped, Fischer, with two companions, came with their automobile down Second street and stopped east of the barn about 40 feet north of the tracks. As this automobile stopped, that of Corbett came around the corner and down Second street past Fischer's automobile and onto the track. Two witnesses thought decedent slowed down when near the tracks. Others say he was “coming along all right,” and the speed of his automobile was estimated at from 8 to 15 miles an hour. The lights on his car were burning. It nearly cleared the middle track, when the right side of the pilot “up-ended it” and threw it, with Corbett, clear of the track. The evidence tended to show that the headlight on the engine was lighted, though it was not yet dark, that the bell was not rung, and that the engines “roared,” as the witnesses said, as they approached. There were two engines, hauling 10 or 11 passenger and other cars. The speed of the train was variously estimated from 25 to 50 or 60 miles an hour. The testimony of two witnesses that an automobile like that which decedent was driving, when going 8 or 10 miles an hour, would move about 25 feet, was undisputed. It also appeared that gates were maintained with a watchman at the crossing during the daytime only.

Such are the facts as they appear from the record before us, and there seems no escape from the conclusion that the view of decedent was completely obstructed by the barn for 80 feet west of Second street along Front street, and for a considerable distance down Second street after he turned. Even when 65 feet south of the northeast corner of the barn he could see the center of the main track only 132 feet to the west. This was but 21 feet north of the center of the north track, and less than 35 feet north of the north rail of the main track. Were an approaching train seen from this point, that is, 35 feet north of the center of the middle or main track, it must in the ordinary course have passed the crossing in time to have avoided a collision, at least, a front-end one, so that it can fairly be said that the view of a person driving south on Second street was obstructed until within 35 feet of the center of the main track. Whether the bell on the approaching engine was ringing was in dispute, and the evidence was such as to carry that issue to the jury. Though the barn likely did not completely obstruct the sound, it would render somewhat difficult the determination of the location of the bell and its distance. This would not be entirely obviated until 35 or 40 feet from the center of the main track. He was familiar with the surroundings, and in turning down Second street must have been fully aware of the obstacles obstructing his view, and that, as he approached the main track, his view would gradually expand, and that only when near to or on the north track would he have a clear vision to the west. In these circumstances was he not, in the exercise of ordinary care for his own safety, required to stop his car and look and listen? or, if he did not so stop, to have his car under such control as that upon discovering danger from an approaching train he might bring it to a standstill in time to avoid a collision? Nothing is gained by looking and listening unless the vehicle operated is under such control that the danger, when ascertained, may be avoided. In other words, the exercise of ordinary care demands the same degree of vigilance in avoiding an impending calamity as in discovering its existence. We do not say that decedent must have stopped his automobile, but we do say that in view of the circumstances he could not have gotten any considerable view of the main track on which he knew through trains ran until nearly opposite the south line of the barn, and only 25 feet north of the center of the main track, and a narrower view farther north, and even these opportunities to see might be impaired by cars standing on the north track. He was bound to take reasonable precautions for his preservation, in event he might discover an approaching train when he reached a point from which he could see. A railroad crossing has often been declared a place of known danger-Bussler v. Railway Co., 165 Iowa, 361, 145 N. W. 533, and a traveler must at his peril exercise ordinary care for his protection in undertaking to cross over it. As declared in Sohl v. Railway, 183 Iowa, 616, 167 N. W. 529:

“While a railway company may not operate its trains over highway crossings at such a speed as, in view of local conditions, will endanger the lives of those prudently making use of these, a traveler is not permitted to make nice calculations as to whether he will be able to pass over in front of a rapidly approaching train in safety. The...