Daly v. Illinois Cent. R. Co.

• Citation: 80 N.W.2d 335,248 Iowa 758
• Decision Date: 15 January 1957
• Docket Number: No. 49093,49093
• Parties: Ileen DALY, Administratrix of the Estate of Cletus Daly, Deceased, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY and D. L. Holley, Appellees.
• Court: Iowa Supreme Court

Page 335

80 N.W.2d 335

248 Iowa 758

Ileen DALY, Administratrix of the Estate of Cletus Daly, Deceased, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY and D. L. Holley, Appellees.

No. 49093.

Supreme Court of Iowa.

Jan. 15, 1957.

Rehearing Denied April 5, 1957.

Kenline, Roedell, Hoffmann & Reynolds, Dubuque, for appellant.

O'Connor, Thomas, McDermott & Wright, Dubuque, and Burnquist, Helsell & Burnquist, Fort Dodge, for appellee, Illinois Cent. R. R. Co.

Czizek & Czizek, Dubuque, for appellee, D. L. Holley.

WENNERSTRUM, Justice.

Plaintiff, as administratrix of the estate of Cletus Daly, brought a law action to recover damages from the Illinois Central Railroad Company and its engineer, D. L. Holley, for the wrongful death of her husband. The defendant railroad company's train, operated by Holley, struck a truck driven by the deceased at a crossing in Farley, Iowa on the morning of January 7, 1952. At the close of all the evidence the trial court directed a verdict for both the defendants and judgment was entered against the plaintiff for cost. A motion for new trial was overruled. Plaintiff has appealed.

The railroad tracks of the defendant company run generally east and west through Farley. Clark street, which crosses the railroad tracks, extends in a north and south direction and as it approaches the tracks from the south slopes downgrade to the north. The evidence shows the street is slightly higher on the outside edges than in the center and at the time when the accident occurred was covered with slippery wet snow. There had been no melting and the street was snow packed with no ruts.

A short time after 9 o'clock a. m. on the date mentioned Daly was driving his employer's three quarter ton International truck, equipped with mud and snow tires on its rear wheels, in a northerly direction on Clark street. Martin Gansemer was standing at the east end of a lumber yard, which was adjacent to or near the railroad tracks, and first saw the truck as it proceeded north on Clark street when it was 50 to 60 feet south of the tracks. It was then traveling about 10 miles per hour. Approximately at the same time he heard the horn of the train as it approached the crossing. When the truck was at a point within 30 feet of the track he observed its four wheels were locked and it was sliding to the north. He saw the front end of the engine strike the left side of the truck close to the cab door. Over objections of plaintiff's counsel Gansemer testified on cross-examination that in his opinion Daly could have stopped the truck before it reached the tracks if there had been no ice. It is shown by interrogatories answered by the defendant Holley, the train was being operated at the time of the collision at a rate of approximately 70 to 72 miles per hour. At that time the train was one hour and ten minutes behind schedule.

The evidence disclosed there was one blast of the horn of the engine but the bell was not sounded. It was stipulated that Daly died of injuries received as a result of the collision.

The defendants offered no oral testimony. However, they did introduce three photographs and a chart purporting to show the distances one could see looking westerly along the railroad tracks from Clark street.

The plaintiff seeks reversal on the sole ground the trial court erred in directing a verdict for the defendants. The court assigned as its reason for its action the failure of the plaintiff to show the acts of the defendants were the proximate cause of the collision. They maintain in this court the proximate cause of the collision was either the contributory negligence of plaintiff's decedent or the intervening proximate cause was the icy condition of the street. It is contended if this latter situation was the cause of the collision then it was an unavoidable accident for which neither party was responsible.

I. Section 478.19, 1950, 1954 Code I.C.A. provides: 'A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed; but at street crossings within the limits of cities or towns the sounding of the whistle may be omitted, unless required by ordinance or resolution of the council thereof; and the company shall be liable for all damages which shall be sustained by any person by reason of such neglect.'

The failure to ring the engine bell was pleaded as one of the grounds of negligence. The evidence clearly shows there was no ringing of the engine bell. A violation of the above section is negligence. Hough v. Illinois Cent. R. Co., 1915, 169 Iowa 224, 149 N.W. 885. Consequently it must be held that in failing to ring the engine bell the defendants were negligent. But was the negligence the proximate cause of the collision.

II. Proximate cause is '* * * the primary moving cause or predominating cause from which the injury follows as a natural, direct, and immediate consequence, and without which it would not have occurred'. Aitchison v. Reter, 245 Iowa 1005, 1012, 64 N.W.2d 923, 927. See also 38 Am.Jur., Negligence, section 50, page 695; Snook v. Long, 241 Iowa 665,...