Gilliam v. Chi., R. I. & P. Ry. Co.
| Decision Date | 20 November 1928 |
| Docket Number | No. 38795.,38795. |
| Citation | 206 Iowa 1291,222 N.W. 12 |
| Parties | GILLIAM v. CHICAGO, R. I. & P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Hardin County; H. E. Fry, Judge.
Action for damages for personal injury sustained in a collision between an automobile, in which plaintiff was riding, and one of defendant's trains. Trial to the court and a jury. Verdict and judgment thereon for the plaintiff. The defendant appeals. Reversed and remanded.Aymer D. Davis, of Eldora, and J. G. Gamble, R. L. Read, and A. B. Howland, all of Des Moines, for appellant.
Peisen & Soper, of Eldora, for appellee.
[1] The appellant assigns as error the overruling by the court of its motion for directed verdict, which was made at the close of the plaintiff's evidence and renewed at the close of all the evidence. It is the appellant's contention that, under the record, the plaintiff was guilty of contributory negligence as a matter of law, or that the evidence fails to establish his freedom from contributory negligence. For the determination of this question, we turn to the record, and it is incumbent upon us to give to the testimony of the appellee the most favorable construction that can fairly be placed upon it. The collision occurred at the intersection of appellant's line of railway with one of the streets in Iowa Falls on September 30, 1925, between 2 and 3 o'clock in the afternoon. At the time in question, the appellee was riding in a left-hand drive Star touring car, which was operated by one Thomas. The appellee occupied the front seat to the right of the driver. The appellee met Thomas at a pool hall, and from there they walked to the creamery; the appellee had left his car on the east side of the city, and at the creamery he told Thomas he was going to walk over to his car, and Thomas responded that he was going over on the east side and appellee could ride with him. From the creamery they pursued a course which took them eastward past the depot district. The appellee testified that, in traveling eastward on the main road, they crossed the Rock Island track, and then turned north, going north about two blocks, and then turned west, stopping in front of the home of Thomas, which is about 175 to 200 feet east of the place of the collision; that in going north they passed over two railroad tracks.
The appellee had lived in the vicinity of Iowa Falls about nine years, but had never been on this street running east and west across the railroad track and past the Thomas home. At the place of the collision, the railroad track and the street, which is a dirt street, cross at approximately right angles; the railroad running approximately straight north from the place of the intersection with the street, for a distance of 550 feet, at which point it begins to curve. The train which struck the car came from the north. For a distance of 100 feet or more east of the crossing there was nothing to obstruct the view of any one going west in the street, and, looking to the north and northwest, from seeing a train at any point south of the curve. The point of lowest depression between the Thomas' home and the railroad track is about 35 feet east of the crossing where there is a wooden culvert with railings thereon. From said culvert there is a slight incline up ward to the rails of the track. At the crossing are the usual monuments marking the location of a railroad, such as fences, gates, cattle guards, telegraph poles, and a conspicuous sign upon which are painted the words, in large letters, “Railroad Crossing.” It was a cloudy afternoon, mist was falling, and some of the witnesses, including the plaintiff, speak of fog. At the time in question, the side curtains were on the car; the one to the right of the plaintiff being the usual ordinary side curtain with isinglass. There was mist on the windshield and the isinglass.
The plaintiff testified that he did not at that time know there was a railroad there; that, before the accident, he had been to the B. C. R. & N. Station of the Rock Island on Sherman street, and had been to the short line station of the Rock Island on the main road; that he had ridden on the train to Dows, northwest of Iowa Falls; that he knew there was a track running through the short line depot--through the interlocking switch north toward Hampton--but he did not know that the track was within a block west of the Thomas' home. From the Thomas' home the car was driven west to the crossing, and plaintiff testifies that he did not see the train until just as the car got on the track.
There is testimony as to the failure of the defendant to give the usual alarms, and also there is testimony that the train at the time, being a heavy freight train, consisting of more than 50 cars, was running from 25 to 30 miles an hour, and other testimony that its rate of speed was not to exceed 10 miles an hour. There is no direct testimony as to the rate of speed of the automobile, but the plaintiff testifies: “Mr. Thomas hadn't shifted the gears into high at the time of the accident.” The plaintiff testifies that he at no time looked to the north or northwest, but that he kept looking ahead up until the time of the accident; that he kept a front watch out of the windshield, watching the road; that he did not look through the isinglass at the side of the car after the car started; that he did not look out to the right to see if a train was coming from the north.
He further testified on direct examination:
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