Golinvaux v. Burlington, C. R. & N. R. Co.

• Citation: 125 Iowa 652,101 N.W. 465
• Court: Iowa Supreme Court
• Decision Date: 22 November 1904
• Parties: GOLINVAUX v. BURLINGTON, C. R. & N. R. CO.

125 Iowa 652

101 N.W. 465

GOLINVAUX

v.BURLINGTON, C. R. & N. R. CO.

Supreme Court of Iowa.

Nov. 22, 1904.

Appeal from District Court, Black Hawk County; A. S. Blair, Judge.

Action at law to recover damages for the death of Joseph Golinvaux, due to his being struck by one of defendant's trains at a street crossing in the city of Waterloo. Trial to a jury. Verdict and judgment for the defendant, and plaintiff appeals. Affirmed.C. A. Irwin and Mullan & Pickett, for appellant.

Carroll Wright, John I. Dille, and Miller & Williams, for appellee.

DEEMER, C. J.

The deceased, while riding in a lumber wagon with three other men, upon a street in the suburbs of the city of Waterloo, which crossed the defendant's right of way at an acute angle--the street running north and south, and the right of way from the southeast to the northwest--was struck by a train on the defendant's road running from 60 to 65 miles per hour, and he and two of his companions were killed in the accident. The triangular piece of ground to the southeast of the crossing, from which direction the train was coming, was obstructed by trees and buildings so as to more or less obscure the view of trains passing over the right of way. The horses hitched to the wagon were either going at a fast walk or a slow jog, as some of the witnesses say, and the men in the wagon were intently conversing with each other from the time they were first observed in the highway until the team had reached or nearly reached the tracks on defendant's right of way. It was not stopped at any time, nor did the men apparently look or listen for the approach of trains. The negligence charged is failure to provide a flagman or gateman at the crossing, failure of the operatives in charge of the engine to ring the bell or sound the whistle for the crossing, and the high rate of speed of the train. Defendant denied all negligence, and pleaded contributory negligence on the part of plaintiff's intestate, which contributed to the injury complained of.

On the issue of defendant's negligence, plaintiff relies upon a statute which reads as follows: “A bell and steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed; but at street crossings within the limits of cities or towns, the sounding of the whistle may be omitted, unless required by ordinance or resolution of the council thereof; and the company shall be liable for all damages which shall be sustained by any person by reason of such neglect.” Code, § 2072. By its terms this statute, in so far as it requires the blowing of the whistle, does not apply to street crossings within city limits, in the absence of some ordinance or resolution on the part of the city. There is no evidence here of any such ordinance or resolution; hence that feature is out of the case. It does require, however, the ringing of the bell, which should be commenced when the duty to blow the whistle for other crossings would have ended--that is to say, 60 rods before the crossing is reached; and, if the street crossings are to be less than 60 rods apart, then the bill should be rung continuously from the time the duty to ring begins down until all crossings are passed. There was not sufficient evidence to take the case to the jury on the question of defendant's negligence in failing to keep a flagman at the crossing, although its failure to do so may be taken into account, with other circumstances, in considering the alleged negligence in running the train at a high and dangerous rate of speed over the crossing. Again, the defendant was not responsible for the obstructions to the view of the train, and these did not in themselves constitute negligence on defendant's part; but these matters have a double aspect--first, in determining defendant's negligence in running its train in the manner it did; and, second, as bearing upon the conduct of the deceased in approaching the crossing. Again, the high rate of speed at which the train was operated is not of itself negligence, but it, too, should be taken into account in determining defendant's care or the want of it. Taking into consideration all the evidence in the case, the obstructions near the point of crossing, the absence of a flagman, the high rate of speed of the train, and the testimony regarding the failure to ring the bell, we are constrainedto hold that there was enough testimony to take the case to the jury on the question of the defendant's...