Finley v. Lowden
| Decision Date | 08 February 1938 |
| Docket Number | 44026. |
| Citation | 277 N.W. 487,224 Iowa 999 |
| Parties | FINLEY v. LOWDEN et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Louisa County; Oscar Hale, Judge.
This is an action to recover damages for injuries sustained by plaintiff as the result of a collision between a gasoline motor train and a truck in which plaintiff was riding as a guest. The defense was in effect a general denial, and that the injuries sustained by plaintiff were the result of his own negligence directly contributing. The cause was submitted to a jury which returned a verdict in favor of the plaintiff. From judgment thereon, defendants appeal.
Affirmed.
J. G Gamble, R. L. Read, and A. B. Howland, all of Des Moines, and Hicklin & Hicklin, of Wapello, for appellants.
John Hale, of Burlington, and Arthur Springer and F. W. Miller both of Wapello, for appellee.
This case presents the familiar picture of an ordinary crossing accident, with the usual contradictions in the testimony offered and the usual differences in the conclusions which are sought to be drawn therefrom by the respective parties. Because of the conclusions hereafter announced, we do not deem it necessary to examine the evidence in such detail as might be thought desirable if this were an action brought by the driver of the truck involved in the accident under investigation.
Plaintiff in this action was a guest, riding between the driver and owner of the truck, Bumgardner, who sat on the left, and Denham on the right.
To one passingly familiar with the decisions on this subject, it is apparent that the rules applicable to a plaintiff in this situation are not the same as those which would control if the driver were himself complaining of injuries sustained. In this case the evidence is such that had Bumgardner been bringing this suit it might be that we could hold that he did not exercise that degree of care demanded of him by law, but we find it unnecessary to draw such a conclusion because, as we view the record, the question of whether negligence existed on the part of the plaintiff was not for the court as a matter of law, but for the jury as a matter of fact. The court took the view that it was for the jury, and overruled defendants' contentions to the contrary. In so doing we think the lower court was right.
It will serve no good purpose to make a comparison of the testimony by witnesses on either side, because according to our rule, if the question is one upon which reasonable minds may fairly differ, we are not concerned with whether the result is one which we might have reached had we been triers of the facts. As not uncommonly happens in cases of this kind, the defendants strenuously argue that the testimony of those witnesses who gave evidence with reference to signals is of a negative character and lacks probative value. We have examined the testimony of the witnesses carefully, resorting to the transcript in matters of doubt, and we are satisfied that there was a fair conflict upon the question whether timely and proper signals were or were not given. It might be conceded without changing the result that the testimony offered by the defendants on the question of signals was more direct and positive than that offered by the plaintiff, but this is no reason for our taking the position that the jury, having opportunity of judging and seeing the witnesses on the stand, was not warranted in believing the testimony of plaintiff's witnesses.
Bumgardner, the driver of the truck, said that he looked north as he approached the crossing, at least twice, and saw no train. He heard the whistle once and that immediately before the crash, and did not hear the bell at any time.
The witness Marsh, an express messenger who was on the depot platform waiting for the train, heard no bell at any time. Another witness near. the scene of the accident heard no whistle or bell until after the accident, when he heard the bell. Utter, the mail messenger at the station waiting for the train, heard the whistle more than once and did not remember hearing the bell.
As the truck approached the crossing, at a short distance therefrom, the plaintiff saw a flash of light against the rails, and almost immediately heard the whistle; and then came the crash.
Another witness testified that she heard the train whistle, but not more than once. Another heard the whistle at a considerable distance from the crossing, but would not say whether more than once.
In this statement we have necessarily taken plaintiff's view as the jury might have found it, and we are satisfied that we are not warranted in saying that the testimony of witnesses, so located and so engaged, was of such a negative character that as a matter of law it did not rise to the dignity of evidence having probative force.
This accident happened in the westerly outskirts of the city of Wapello, and the highway and railway near the point of the accident both proceed in a somewhat northwesterly and southeasterly direction, though the railroad track curves somewhat from the northwest, veering to the east and forming a rather acute angle at the point of intersection. This situation put the driver, Bumgardner, in a position where the nearer he approached the crossing the more his vision to see an approaching train tended backward over his left shoulder. The plaintiff, sitting at his right side, naturally had a much more limited vision and could scarcely see the train without leaning forward and looking around and past the driver. The gravel box on the back of the truck obstructed the rear window of the cab, so there was no opportunity to see by looking out that way. Plaintiff's testimony would seem to indicate that his observation to the north was rather casual. The train, if it had been on time, would have passed more than an hour before, and this affords the basis of plaintiff's testimony that his attention was more directed to the south, whence a train might come, than to the north.
This brings us to what we regard as the primary, and in fact, the only real question in the case.
The truck was in good condition and its driver thoroughly experienced and thoroughly familiar with the crossing through many years. The plaintiff was likewise familiar with the crossing, having passed back and forth twice a day for two or three weeks in this same truck. The driver of the truck was on the...
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