Glanville v. Chicago, Rock Island & Pacific R'Y Co.

• Decision Date: 14 December 1920
• Docket Number: 33390
• Citation: 180 N.W. 152,190 Iowa 174
• Parties: CLARA V. GLANVILLE, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

180 N.W. 152

190 Iowa 174

CLARA V. GLANVILLE, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 33390

Supreme Court of Iowa, Des Moines

December 14, 1920

Appeal from Wayne District Court.--H. K. EVANS, Judge.

ACTION for damages consequent on a collision of an automobile with a railway train, resulted in judgment for plaintiff. The defendant appeals.

Reversed.

F. W Sargent, J. G. Gamble, and Miles & Steele, for appellant.

Carter & Bracewell, for appellee.

LADD J. WEAVER, C. J., STEVENS and ARTHUR, JJ., concur.

OPINION

LADD, J.

Plaintiff, with her family, had moved from a farm about 8 miles northwest of Lineville to that town in September, 1917, and had taken up her residence on the south side of Mill Street, about 1 1/2 blocks east of the crossing of that street by defendant's railroad. Through arrangement with her husband, Claude Hesseltine, a boy 18 years old, on October 13th took plaintiff and her husband, with two of her children, in his father's Ford automobile to the farm to get vegetables they had raised. Shortly after 4 o'clock in the afternoon, they returned by way of and turning south on Washington Street, about a half mile directly north of its intersection with Mill Street, and east into Mill Street, and, in crossing the defendant's railway, the automobile was struck by one of defendant's trains coming from the north, causing the injuries of which the plaintiff complains. The petition alleges that defendant was negligent (1) in operating its train at a dangerous rate of speed, in violation of statute and of an ordinance of the town of Lineville; (2) in failing to ring the bell and sound the whistle on the engine, as required by law; and (3) in omitting to keep a flagman at the crossing at Mill Street, or else an automatic signaling device. There was the usual allegation that plaintiff was without fault, and this, in addition to a general denial, was specifically controverted by the answer, which also averred that plaintiff and Hesseltine were engaged in a joint enterprise, and also that he was acting as her agent in operating the car. Though these last two issues were submitted to the jury, they were without support in the evidence, and for that reason require no further attention. Only the assignments of error argued will be considered, and these are: (1) That the evidence conclusively proved plaintiff to have been guilty of negligence contributing to her injuries; (2) that the evidence was insufficient to go to the jury on the issue as to whether defendant was negligent in failing to install an electric signaling device or maintain a watchman at the Mill Street crossing; (3) that the court erred in submitting whether the defendant was negligent in failing to sound the whistle; and (4) the court erred in giving Instruction No. 1.

I. Counsel for appellant contend that contributory negligence was proven conclusively, and that, on that ground, verdict should have been directed for the defendant. It appears that, in returning from the farm, plaintiff rode in the back seat of the automobile, with her husband at her right. The daughters rode in the seat with Hesseltine, who operated the car, the son having returned another way. As the automobile turned south into Washington Street, Hesseltine and Glanville claimed to have had a clear view of the defendant's railway track to the east of north, the former a distance of about three miles, and the latter one and one-half miles, and that neither observed a train. As the automobile turned east on Mill Street, these men appear to have observed smoke and a train to the south, and to have watched to see whether it was moving northward. Neither looked to the north until the train was upon them. The railroad ran east of north, nearly parallel with Washington Street, cutting the block immediately north of Mill Street and east of Washington Street, and, a half mile north, was two and one-half blocks east of Washington Street. The northeast corner of the intersection of Washington Street and Mill Street is 90 1/2 feet west of the center of the railroad track, and the center of Mill Street on the east line of Washington Street is 84 feet west of the center of the track. There is a rise in this last distance of 4.68 feet: that is, from the surface of the east line of Washington Street to the top of the rails. From the top of the rails to a point 150 feet east of the center of the track, there is a fall in Mill Street of 13.2 feet. The southeast corner of a house 27 feet square is 35 feet north of a point on the north side of Mill Street, and 49 feet west of the railroad track. The southwest corner of the house is 14.5 feet from Washington Street. Its east side, extended south along Mill Street is 54 feet from the track. To the north, there are 7 houses in the same block,--that is, in a distance of 600 feet. The house described obstructed the view of the railroad more or less, until the automobile was about 54 feet west of the crossing. Though the house obstructed plaintiff's view, she could see from there on, and, in keeping a lookout, was bound to exercise such reasonable care as an ordinarily prudent person would exercise in like situation. She was entirely familiar with the surroundings, and was aware of it when the automobile turned on Mill Street, as her home was but a short distance beyond the crossing. Her testimony was that she--

"Was very tired from working all day. I had a heavy coat on, and couldn't move extra well, the position I was in the car. I really left it to them to see; I supposed they were seeing. * * * Q. I will ask you if, at any time previous to the collision, you looked out of the automobile in either direction towards the railroad track. A. To the right or the left? Q. Either side or either direction. A. No, sir. Q. Did you at any time notice a train coming from the north? A. No, sir. Q. Did you see the track before you approached it? A. Just straight ahead. After we turned into the east and west road, and were proceeding east on Mill Street, I looked to see if a train was coming from the north."

Omitting the last-above-quoted sentence, counsel for appellant argue that her answers conclusively prove her to have been guilty of contributory negligence. An amendment to the abstract adds that sentence to what precedes, and, as there is no denial we must regard it as a part of the record. The curtains of the automobile were down, but these had openings, with some kind of transparent material, probably celluloid, inserted. In front of her and Glanville, though, behind the front seat, were two sacks of beans, a sack of potatoes, apples, tomatoes, and possibly other truck from the garden. In this situation, with the driver in front, husband at her side, and her view somewhat interfered with by the curtains, how does what she claims to have done measure up with what might reasonably have been expected of a person of ordinary prudence, in like situation? One sitting in a back seat is not in a situation to maintain as adequate a lookout as the driver or other person in the front seat, especially when the curtains are down. If he looks out in front, his view is narrowed, so that he is not likely to see far on either side; if he looks through the transparent substance inserted in the curtains, he must adjust his position to see, and would be likely to experience some difficulty in fixing his relations with surrounding objects. Other interferences with obtaining an adequate view through the curtains by plaintiff were her coat, and the vegetables about her. She could not, in any event, have obtained a clear vision of the track until beyond the obstruction of the house, which would be only about 60 feet from the track; and, as the train then might have been 180 to 240 feet north of the crossing, she might have looked to the front...