Dedina v. Chicago, M., St. P. & Pac. R. Co.

• Decision Date: 14 January 1936
• Docket Number: 42712.
• Citation: Dedina v. Chicago, M., St. P. & Pac. R. Co., 264 N.W. 566, 220 Iowa 1336 (Iowa 1936)
• Parties: DEDINA v. CHICAGO, M., ST. P. & PAC. R. CO.
• Court: Iowa Supreme Court

264 N.W. 566

220 Iowa 1336

DEDINA v. CHICAGO, M., ST. P. & PAC. R. CO.

No. 42712.

Supreme Court of Iowa.

January 14, 1936

Appeal from District Court, Cerro Gordo County; Joseph J. Clark Judge.

Law action for damages brought by minor plaintiff by next friend based on alleged negligence of defendant in the operation of its train.There was a trial, verdict, and judgment for defendant, from which plaintiff has taken this appeal.

Reversed.

Senneff, Bliss & Senneff and Robert M. Witwer, all of Mason City, for appellant.

Blythe, Markley, Rule & Dibble, of Mason City, and Hughes, O'Brien & Faville, of Des Moines, for appellee.

RICHARDS, Justice.

This is an action brought by plaintiff, Roland P. Dedina, a minor, by next friend, for damages on account of personal injuries received at about 9:15 o'clock a. m. on July 23, 1930, when an automobile in which he was riding came into collision with one of defendant's trains.Defendant was a corporation operating a railroad through the town of Plymouth in Cerro Gordo county.On the west side of the town of Plymouth is Broad street, running north and south.Defendant's railroad track crosses Broad street and at that point extends in a northeasterly and southwesterly direction.On the morning of the date mentioned, one of defendant's trains was coming from the northeast and proceeding toward the Broad street crossing and at the same time Hazel Dedina, mother of the plaintiff, was driving north on Broad street toward the crossing.The plaintiff, who was four years old, was riding in the rear seat of the automobile.Neither the train nor the automobile stopped at or before reaching the crossing, and while both were in motion, they came into collision upon the crossing, meeting at an obtuse angle, the front end of the automobile coming into collision with the front part of the engine.The collision brought about the injuries for which plaintiff claims damages.

The plaintiff's cause of action is based on the alleged negligence of the defendant in several respects, including the operation of the train at an excessive and unlawful speed, the failure to give warning signal by whistle, the failure to give warning signal by ringing of bell, and the operation of said train at said unlawful and negligent excessive rate of speed, without warning signal by bell or whistle or by either of them.The court submitted these particulars of alleged negligence to the consideration of the jury.Defendant's answer was a general denial.

Plaintiff assigns as error the giving of a portion of instruction No. 7, being an instruction in which the court advised the jury as to the meaning of the words, " proximate cause."The particular portion of the instruction challenged by plaintiff is in the following words: " It means the actual cause of the collision and direct injuries to the plaintiff resulting therefrom in this case, whether operating directly or by putting in motion other intervening agencies the operation of which could not be reasonably avoided, by which the collision was produced, and this would be the proximate cause to which the collision should be attributed.If you find there was negligence in one or more of the respects charged in the petition, in the operation of defendant's train, without which the collision would not have occurred, and there was no intervening agency to interrupt the responsible connection between such negligent act or acts to cause the collision, and that such intervening cause did not supersede the original wrongful act or omission, and sufficient of itself to stand as the cause of said collision, then the defendant's negligence was the proximate cause thereof.But if as claimed by defendant you find that the lack of care on the part of plaintiff's mother in driving the car upon the crossing did intervene in such a way as to break the connection of the defendant's said acts, as an independent and sufficient cause in and of itself, which produced the said collision, and that the collision would have otherwise not occurred whether or not there was negligence as aforesaid on the part of the defendant, and that none of the negligent acts of the defendant contributed thereto, then the act of the mother was the proximate cause of the injury and not the acts of the defendant."

As his objection to the foregoing, plaintiff claims that the facts in the case are such that the acts of the mother in driving her car to the point of collision with the moving train of defendant, even if negligent, were not an intervening superseding cause at all, but rather her acts were concurring, co-operating with the acts of the defendant to produce the result.Plaintiff's...