Dolan v. Bremner
| Decision Date | 17 December 1935 |
| Docket Number | 43011. |
| Citation | 263 N.W. 798,220 Iowa 1143 |
| Parties | DOLAN v. BREMNER. |
| Court | Iowa Supreme Court |
Appeal from District Court, Hardin County; Sherwood A. Clock, Judge.
Action at law for damages resulting from an automobile in which plaintiff was riding as a guest colliding with the side of a railroad refrigerator car standing on the crossing of a railroad over a public highway. There was a verdict and judgment for the plaintiff, and the defendant appeals.
Reversed.
Boardman & Cartwright, of Marshalltown, for appellant.
Peisen & Soper, of Eldora, and Burr Towne, of Waterloo, for appellee.
The accident out of which this action arose happened at a point near the northwest corner of the town of Ackley in Hardin county, Iowa, where paved highway No. 20 crosses the main line and two side tracks of the Minneapolis & St. Louis Railroad Company. The defendant, W. H. Bremner, is the receiver of the railroad company. On the night of October 10 1933, between 8 and 9 o'clock, the plaintiff was a guest in an automobile owned and operated by Dr. J. K. Stipp, which was going eastward on the highway.
The evidence tends to show that on this night mist or fog was overhanging the lowlands and low portions of the paved highway. There is evidence tending to show that, as the highway approaches the railroad crossing from the west, there is a gentle slope downward to a point about 15 feet west of the railroad tracks, and that from this point there is a slight incline upward, the total rise being estimated at from 8 to 12 inches. The driver of the car in which the plaintiff was riding testified that, as he was going down the incline and approaching the railroad tracks, he had slowed his car down to a speed of 20 to 25 miles per hour; that his headlights were lighted, and, when obstructed by the fog or mist, he could see the roadway for more than a block ahead of his car; that, as he came down the incline toward the railroad tracks and about the time he reached the point where the slight elevation began toward the railroad tracks the rays from his headlights appeared to be lighting up the road ahead of him, but that, as he proceeded up the incline toward the railroad tracks and had about reached the first or most westerly track, he suddenly realized that there was a fog hanging over the road at this point and that there was a railroad refrigerator car standing across the highway on the easterly railroad track; that he applied his brakes as quickly as possible and tried to turn his car to the right, but was unable to prevent his automobile from colliding with the side of this car. As a result of this collision, the plaintiff received the injuries on account of which she brought this action.
It further appears from the evidence that there was the ordinary cross-arm railroad warning sign on the north side of the paved highway to the east of the railroad tracks, but, on account of the train, this sign was not visible to the west of the crossing. So far as the record shows, this was the only warning sign of any kind to apprise travelers on the highway of the railroad crossing. Plaintiff based her claim for damages on two grounds of negligence, as follows:
In its answer the defendant denied all allegations of the petition not expressly admitted; admitted the happening of the accident at the time and place alleged in the petition; specifically denied that such accident was due to the negligence of the defendant or its agents and employees; and averred that the accident was caused by the negligent operation of the motor vehicle in which plaintiff was riding. At the close of plaintiff's evidence, the defendant filed a motion for a directed verdict in its favor. Upon such motion being overruled, the defendant rested and again filed such motion with some additions thereto. This motion was also overruled, the case was submitted to a jury, and a verdict was returned in favor of the plaintiff, upon which judgment was entered by the court. From such judgment and rulings of the trial court, the defendant appeals.
Several errors are set out and relied upon for reversal. The first allegation of error to which we will direct our attention is, in substance, that the evidence was insufficient to show that there was any negligence on the part of the defendant which was the proximate cause of the accident and injuries complained of. It appears without dispute in the evidence that the railroad company did comply with the requirement of our statute by maintaining on the east side of its railroad tracks and to the north side of the highway the ordinary cross-arm warning sign. It is the contention of the appellee, however, that the particular crossing in question is unusually dangerous, and that, in addition to the statutory sign, ordinary care on the part of the railroad company would have required other signs or warning signals to apprise the drivers of vehicles upon the highway of the presence of the railroad crossing. It may be conceded that, as contended by appellee, if a railroad crossing is unusually dangerous, a railroad company may be under obligation to install other warning signs or signals in addition to those required by statute. No general definition can be given as to what constitutes an unusually dangerous railroad crossing. Whether or not a railroad crossing is unusually dangerous must depend upon the facts in each particular case. The facts in regard to this crossing, upon which the plaintiff's contention is based, may be stated in general terms about as follows: That three tracks of the defendant crossed the state highway at this point; that to the north of the highway and to the west of the railroad tracks there is a large brick building which shuts off the view of the railroad tracks north of the highway to persons traveling eastward thereon; that frequent passenger trains and large freight trains travel over this crossing; that the crossing is located on the edge of a low draw or slough in which banks of mist and fog are apt to be found; that the highway is a paved east and west trunk highway extending from Sioux City, Iowa, eastward through Dubuque and Chicago, with its eastern terminus at Albany, N.Y., and carries more traffic than any other trunk highway in Iowa excepting two; that, on account of there being a downward slope toward the crossing from the west, which ends about 15 feet west of the westerly railroad track and then rises slightly toward the railroad tracks, the lights from cars driving eastward do not light the highway at the crossing until this slight ascent toward the railroad tracks is reached; and that, because of the absence of any warning signs on the highway to the west of the crossing persons traveling thereon are not apprised of the presence of the crossing until they are almost upon it.
While the evidence shows that this highway carries heavier traffic than most of the trunk highways in this state, the only evidence as to the railroad traffic is that about four trains each way, or a total of eight trains per day, cross this highway, and there is nothing to show that the dangers occasioned by the amount of traffic over this crossing were greater than those connected with dozens, if not hundreds, of other railroad crossings in this state. The brick building at the northwest corner of the intersection of the highway and railroad tracks, to which reference has been made, while it might interfere with the view of persons approaching the crossing on the highway from the west as to trains coming from the north, could in no way have interfered with the vision of the railroad crossing itself. The evidence as to a low draw or slough to the east of the railroad tracks, over which a fog was seen hanging probably an hour or more before the accident, fails to show how far this draw or slough is east of the railroad tracks or that its proximity to the crossing presented such an unusual condition that the railroad company would be bound to take notice that it would be the cause of fogs overhanging the crossing and interfering with the visibility of trains thereon. As to the contour of the highway west of the railroad crossing, we think there is nothing in the evidence that shows any danger resulting from this condition that would place any responsibility upon the railroad company. Appellant's evidence tended to show that from a point a considerable distance west of the railroad crossing the highway sloped slightly downward toward the railroad crossing, this downward slope ending at a point approximately 15 feet west of the tracks, and that, from this point to the railroad tracks, there was a very slight incline of from 8 to 12 inches in the 15 feet. If there be any such break in the grade or incline toward the railroad tracks, the photographs introduced as exhibits fail to show it, and it must certainly be of such trivial nature that it could have no such effect on the direction of the rays from the lights of the car in which appellee was riding as is claimed by appellee.
Conceding that the appellee and the driver of the car in which she was riding may have been deceived by fog or mist overhanging the crossing,...
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