Friesner Fruit Co. v. Chicago Great Western Railway Co.
| Decision Date | 11 December 1924 |
| Docket Number | 36213 |
| Parties | FRIESNER FRUIT COMPANY, Appellant, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 8, 1925.
Appeal from Cerro Gordo District Court.--M. F. EDWARDS, Judge.
ACTION for damages to plaintiff's automobile, as a result of a collision between said automobile and one of the trains of the defendant railroad company, in the city of Mason City. The cause was submitted to the jury, which returned a verdict in favor of the defendant; and the plaintiff appeals.
Reversed.
Senneff Bliss, Witwer & Senneff, for appellant.
Blythe Markley, Rule & Smith and Carr, Cox, Evans & Riley, for appellee.
About nine o'clock on the evening of May 15, 1922, one of the employees of appellant was driving the automobile in question on Fourth Street S.W. in Mason City. The railroad tracks of appellee, and also those of the Chicago & Northwestern Railroad Company, are crossed by the street upon which the car was being driven. Appellant contends that appellee moved a train of thirty-four box cars in a northerly direction upon its tracks across said street, and did so in a negligent manner, causing the injury complained of. Numerous errors are assigned.
I. It appears from the record that appellee had installed a signal bell, which, as we understand it, operated automatically, and indicated the approach of a train to the crossing. Appellant's driver was asked whether or not, prior to the time of this accident, he had crossed the tracks in question a great many times when the bell was ringing, and yet at such times the train was so far away that it was perfectly safe to cross. He answered in the affirmative. He was then asked as to whether or not he had also seen a large number of other people do the same thing. He answered this in the affirmative; and a motion to strike the answer as a conclusion by the witness, and as incompetent, irrelevant, immaterial, and self-serving, was sustained. Appellant contends that there was error at this point, and that the court should have permitted the answer of the witness to stand.
The ruling was not erroneous. The driver had been permitted to testify as to his own acts in connection with the crossing of the track in safety at the time the bell was ringing, and it was immaterial whether he had observed other people do the same thing.
The driver of the car was asked, upon cross-examination, if he was going to Clear Lake to a dance at the time of the accident, and answered in the negative. He was then cross-examined in regard to his testimony in respect to said matter at another trial growing out of the same accident; and, the proper foundation having been laid, the court reporter was produced as a witness in behalf of appellee, and read the testimony of the driver, as given at the former trial, in which it appeared that he did then testify that, at the time of the accident, he was on his way to Clear Lake to a dance. Appellant insists that the testimony was immaterial, and that the impeachment was impeachment on a wholly immaterial matter.
The court instructed the jury that whether or not the driver of the car at the time in question was driving to Clear Lake for the purpose of attending a dance, or for some other purpose, was wholly immaterial. The error, if any, was, we think, cured by the instruction.
The foreman of the train crew of appellee was a witness for appellee, and testified in regard to the accident as he observed it. He was asked, on cross-examination, whether he knew that, if the Northwestern bell was ringing and the Great Western signal bell was also ringing, it would be very difficult for a person coming from the east to know that the Great Western bell was ringing, or to distinguish the sounds of the two bells, if both were ringing at the same time. Objection to this question was sustained; and appellant offered to show that, if the answer was permitted, it would be in the affirmative. The objection should have been overruled.
The engineer on the train was a witness for appellee, and, on cross-examination, was asked:
"But of course you knew, didn't you, that nobody up there toward the north end of the train could hear that engine bell ringing way down at the south end of the string of cars?"
The question was objected to as incompetent, irrelevant, and immaterial, and not proper cross-examination, and as asking for a conclusion of the witness. The objection was sustained. There was nothing on the direct examination of this witness to warrant this interrogatory as cross-examination, and the court did not err in sustaining the objection.
II. Appellant alleged two grounds of negligence: First, that the train was being operated at an unlawful and excessive rate of speed, and in violation of a city ordinance; and second, that the train was being operated without a light on the north end of the train, next to the crossing, and that it was not sufficiently lighted to warn persons of its approach.
The court, in Instruction No. 6, told the jury as follows:
"On the other hand, if you do not find from a preponderance of the evidence that said defendant company was, at said time and place, negligent in the manner or respects specified and claimed by the plaintiff in its petition, then there can be no recovery by the plaintiff against the defendant herein."
It is the contention of appellant that this instruction was erroneous in that it placed the burden upon appellant to establish by a preponderance of the evidence that appellee was negligent "in the manner or respects specified and claimed by the plaintiff in its petition."
In Instruction No. 3, the court also told the jury that appellant must establish, by a preponderance of the evidence, among other propositions, the following:
"That the defendant railroad company, at the time and place in question, was in fact guilty of negligence which proximately contributed to or caused the damages to said automobile, substantially as alleged in plaintiff's petition."
There are two grounds of negligence specified in the petition, and under these instructions the burden was placed upon appellant to establish by a preponderance of the evidence the grounds of negligence as pleaded.
In another instruction, the court told the jury that the questions for its determination were whether or not, at the time and place, the driver of the car was free from contributory negligence, and whether or not the defendant railroad company was negligent at the time and place in question, "in one or the other respects claimed by plaintiff in its petition."
In another instruction, the court told the jury that it should determine whether or not the plaintiff "has established by a preponderance of the evidence that the defendant was, at said time and place, negligent in one or more respects claimed by the plaintiff in its petition, and which are elsewhere set out in...
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Friesner Fruit Co. v. Chi. Great W. Ry. Co.
...199 Iowa 1143201 N.W. 112FRIESNER FRUIT CO.v.CHICAGO GREAT WESTERN RY. CO.No. 36213.Supreme Court of Iowa.Dec. 11, 1924 ... Appeal from District ... and looking for signals or the noise of a train when within a reasonable distance from such railway track and at a suitable place from such crossing thereof, and if the train in question was at the ... ...