Daly v. Illinois Cent. R. Co.

• Decision Date: 18 November 1958
• Docket Number: No. 49542,49542
• Citation: 93 N.W.2d 68,250 Iowa 110
• Parties: Ileen DALY, Administratrix of the Estate of Cletus Daly, Deceased, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY and D. L. Holley, Defendants-Appellants.
• Court: Iowa Supreme Court

Page 68

93 N.W.2d 68

250 Iowa 110

Ileen DALY, Administratrix of the Estate of Cletus Daly, Deceased, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY and D. L. Holley, Defendants-Appellants.

No. 49542.

Supreme Court of Iowa.

Nov. 18, 1958.

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

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

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

LARSON, Justice.

This is the second appeal to this court of an action for wrongful death arising out of a railroad crossing collision between a small truck and the Illinois Central passenger train 'Land O'Corn' on January 7, 1952, in the Town of Farley, Iowa. See Daly v. Illinois Central Railroad Company, 248 Iowa 758, 80 N.W.2d 335.

On the retrial a general verdict was returned in favor of the defendants. Thereafter, the plaintiff, Ileen Daly, Administratrix of the Estate of Cletus Daly, deceased, filed a motion for a new trial on the grounds: (1) that the court combined the issue of speed with the issue of inadequate warning and did not submit the question of excessive speed as a separate independent issue of negligence, and (2) claimed error in a court instruction relating to decedent's duty of care in approaching a railroad crossing. The motion was sustained on all grounds and the defendant railroad and its engineer have appealed from that ruling.

The facts and circumstances surrounding the collision are substantially as set out in our previous opinion. Daly v. Illinois Central Railroad Company, supra. The only material difference is that in the present matter there is record evidence that the bell on the locomotive was ringing at the time of the collision, and a dispute as to whether the warning given was in fact adequate.

On that morning the ground was covered with fresh, wet, slippery snow, and the temperature was below freezing. The involved Clark Street, 50 to 60 feet south of the railroad crossing, slopes downward to the tracks.

A lumber shed and a white picket fence six feet and two inches high obstructed the view westward for one proceeding toward the crossing. The train normally passed through Farley at 70 to 75 miles per hour on its way eastward to Chicago. There was evidence that the engineer commenced ringing the bell of the locomotive 5,000 feet west of Clark Street, and sounded the air horn on the approach to Farley as well as several times inside the limits of the town, the last of which was 1,400 to 1,500 feet west of this intersection.

A Mr. Gansemer witnessed the collision. He saw the decedent proceeding north toward the tracks while some 50 feet away, at about 10 miles per hour. He saw the decedent set the truck's brakes and slide his wheels when he was about 35 feet from the crossing. At the same time he heard the blast of the horn on the train. He sensed there might be an accident at the crossing and stepped out of the lumber shed to see the result. He did not recall hearing the bell. He expressed the opinion that had it not been for the icy highway condition the decedent could have stopped his truck before it came to the tracks.

[250 Iowa 113] Paragraphs 6(b) and 6(c) of plaintiff's petition alleged negligence on the part of defendants as follows:

'(b) In failing to give adequate warning of the approach of said train in view of the speed at which it was being operated, the location of the crossing, its dangerous and obscured nature, and all the facts and circumstances then existing;

'(c) In operating said train at a dangerous and excessive rate of speed under all the facts and circumstances then existing;'

The trial court combined the two specifications in Instruction No. 7 as follows:

'The charges of negligence made by the plaintiff are as follows: * * *

'2. Defendants were negligent in operating the train at the time and place in question at a dangerous and excessive rate of speed under all the facts and circumstances then existing, without giving adequate warning of the approach of said train in view of the speed at which it was being operated and the location and nature of the crossing at which the accident occurred.'

Proper and timely objections were made by plaintiff to this as well as to Instructions No. 8 and No. 9 which also dealt with the specifications of speed and warning as a single fault. The court told the jury in Instruction No. 9:

'* * * if you find from a preponderance of the evidence that at the time and place in question, the defendants were operating said train at a dangerous and excessive speed under all the facts and circumstances then existing, and the defendants could have and in the exercise of ordinary care should have given additional signals of warning of the approach of said train to said crossing, and they failed to do so, you will find that the defendants were negligent.' (Emphasis supplied.)

I. It is not unusual or improper for instructions to juries to paraphrase pleaded specifications of negligence. Clarke v. Hubbell, Iowa, 86 N.W.2d 905, 909, and cases cited. But here, as in the Clarke case, these instructions, as combined and paraphrased, require plaintiff to prove both her specifications 6(b) and (c), whereas proof of either (b) or (c) would be quite sufficient proof of the defendants' negligence to sustain a verdict in her behalf. This was prejudicial error.

Speed is a fact or circumstance which may be taken into consideration in a determination of whether or not adequate warning was or was not given. The type of warning may be a circumstance to be taken into consideration in a determination of whether the speed was dangerous and excessive. But in each case such factors are but one of the circumstances, among others, which must be considered to determine the ultimate fact.

II. The rule exists that no amount of speed of a railroad train is in and of itself negligence except where regulated by statutes or ordinance. But there is also the rule that any speed may be negligence if, under the circumstances of the particular situation, a slower rate of advance is called for in the exercise of reasonable prudence. Jasper v. Chicago Great Western Ry. Co., 248 Iowa 1286, 1297, 84 N.W.2d 21, and citations; Finley v. Lowden, 224 Iowa 999, 1005, 277 N.W. 487; Artz v. C., R. I. & P. R. R. Co., 44 Iowa 284, 285; Wilson v. Chicago M. & St. P. R. Railway Co., 161 Iowa 191, 202, 142 N.W. 54; 154 A.L.R. Annotation 238-239.

From these cases there can be drawn but one conclusion. Excessive speed under some circumstances is a separate issue of negligence upon which recovery may be had, and it merits a separate submission to the jury. Also see Kinyon v. Chicago N. W. Ry. Co., 118 Iowa 349, 92 N.W. 40; Wright v. Chicago, R. I. & P. R. Co., 222 Iowa 583, 589, 268 N.W. 915.

Obviously there is a close relationship between speed at which a train may travel over a highway crossing and the precautions taken to warn persons using the highway or protect them from danger, but we cannot concede that in all circumstances a warning, even though clear and unmistakable, will absolve the railroad company of its duty to operate its trains at a reasonable speed through cities and towns.

While we have said speed alone in the country will not constitute negligence, the ringing of a bell or blowing of a horn or whistle in town or country will not relieve the railroad of all liability when the other circumstances show clearly that reasonable prudence demands a reduced speed. Thus, the duty remains to operate trains with reasonable prudence no matter what warning is given. The common law rule that care, to be reasonable, must be proportioned to the danger to be avoided, applies here as in other cases of alleged negligence. This view seems in accord with that expressed...