Gilliam v. Chicago, Rock Island & Pacific Railway Co.

• Decision Date: 20 November 1928
• Docket Number: 38795
• Citation: 222 N.W. 12,206 Iowa 1291
• Parties: FRANK H. GILLIAM, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

222 N.W. 12

206 Iowa 1291

FRANK H. GILLIAM, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 38795

Supreme Court of Iowa, Des Moines

November 20, 1928

Appeal from Hardin District Court.--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.

Reversed and remanded.

Aymer D. Davis, J. G. Gamble, R. L. Read, and A. B. Howland, for appellant.

Peisen & Soper, for appellee.

WAGNER J. STEVENS, C. J., and EVANS, FAVILLE, and KINDIG, JJ concur.

OPINION

WAGNER, J.

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 9 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 anyone 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 upward 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, "Rail-Road 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 wind shield 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 Burlington, Cedar Rapids & Northern 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 north-west, but that he kept looking ahead, up until the time of the accident; that he kept a front watch out of the wind shield, 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:

"There were side curtains on my right side. It was a kind of drizzly day, dark, cloudy, and foggy-like; there was mist on the curtains and on the wind shield. I should judge a person could see 50 or 75 feet ahead, any moving object, or any signs like that; but it was hard to see them if you didn't understand they were there. There was a fog in there through the low point at the culvert; it was a little thicker there, on account of it being lower than the higher ground. I had never been on that street before. As you leave the Thomas home, the road slopes down into this low place. As we went down the road toward the culvert, the fog got a little thicker. After we got into the traveled track, I watched ahead. The wind shield was--you couldn't see from around 50 feet, or something like that, ahead. Down to the time we came down to the track, there was mist on the isinglass; there was mist on the wind...