Grace v. Minneapolis & St. L.R. Co.
| Decision Date | 12 December 1911 |
| Citation | 133 N.W. 672,153 Iowa 418 |
| Parties | LESSIE GRACE, Administratrix, v. MINNEAPOLIS & ST. LOUIS RAILROAD CO., Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.
ACTION to recover damages for the death of plaintiff's intestate, Bertram H. Grace, alleged to have been caused by the negligence of the employees of the defendant company in operating its road. There was a verdict for plaintiff, and from judgment on such verdict the defendant appeals.--Affirmed on condition.
Affirmed on condition.
George W. Seevers, W. H. Bremner, and E. D. Samson, for appellant.
Bannister & Cox, for appellee.
The defendant operates a line of railway from Minneapolis to Des Moines through the town of Perry, in Dallas county, and the Interurban Railway Company operates a line of railway from Des Moines through Perry, crossing the track of the defendant company at grade about a mile southeasterly from Perry. At this crossing, the line of defendant's railway runs approximately north and south, Perry being to the north, and the line of the interurban railway is approximately east and west. The general surface of the country is level, so that a train approaching the crossing from the north may be seen from the crossing for a distance of two or three miles. About 3 o'clock on the morning of December 16, 1909, an extra engine of defendant was being run from the north towards this crossing in charge of an engineer and fireman. The headlight and classification lamps on the front of the engine were burning. The engine was stopped for a few minutes at Perry and then was started south towards the crossing in question at full speed; the object of the engineer being to reach the next station south, seven miles distant, in time to meet and pass a train scheduled to arrive from the south at that station in about fifteen minutes. As he was required by the rules of defendant company to be in the clear at least five minutes before the time of the arrival of the train which he was to meet, he had not more than eleven minutes in which to run the distance of seven miles. At the crossing in question, the defendant's engine struck the caboose of a freight train on the interurban railway as it was crossing defendant's track, and instantly killed plaintiff's intestate, the conductor of the interurban freight, who was in the caboose.
The interurban railway is a trolley line, operated in general by electric power, but during the period of its construction an ordinary railway steam engine was used on its line, and this engine had, prior to the accident, been used to haul a freight train daily each way between Des Moines and Perry, although freight cars were also hauled by trolley engines. The freight train with which defendant's engine collided at the time of the accident was hauled by this steam engine.
At the crossing in question, no interlocking system had yet been installed, but there was a derailing switch on the interurban line, in the operation of which it was necessary that any car or train should be stopped before reaching the crossing, and could not proceed until an employee had gone ahead across defendant's track and closed the switch by means of a lever at a switch stand; there being such a switch stand on each side of the crossing at a distance of seventy-four feet to the west and sixty-five feet to the east of the crossing. These switch stands are on the south side of the interurban track. During the nighttime, each of these switch stands is provided with a light, about six feet from the ground, these lights being so arranged that when the switch is open they show red east and west along the interurban track and green to the north and south along the defendant's track; and when the switch is closed, ready for the crossing of defendant's track by the interurban cars, they show red along the defendant's track and green along the interurban track. Near the crossing is a signal standard, about twenty feet high, belonging to and operated by the interurban company, so arranged that when the switch is open the light placed thereon shows green along the defendant's track and red along the interurban track, and when the switch is closed, ready for the crossing of defendant's track by the interurban cars, it shows red along defendant's track and green along the interurban track. The lights on the signal standard and on the switch stands were burning and in proper condition for operation at the time of the accident. By an agreement between the two companies, it was the duty of the interurban company to maintain the derailing switch, and stop its cars before they reached the defendant's track, and not to cause its cars to proceed across defendant's track until flagged over the crossing by the conductor, whose duty it should be to assure himself that no train or car was approaching the crossing upon the tracks of the defendant company, before closing the derailing switch and signaling his car or train to proceed.
The interurban freight train with which defendant's engine collided, hauled by a steam engine, as already indicated, consisted of four cars and a caboose; the total length of the train being about two hundred and thirty-four feet. As it approached the crossing from the east, it was stopped by the engineer before the derailing switch was reached, and one Davis, the head brakeman, carrying a lantern, got down on the north side of the engine and went ahead to the crossing, where he stopped, looking both north and south for approaching engines or cars on the defendant's line. Davis testified that he saw nothing that looked like a headlight or other light, or an approaching engine or train, and observed only two lights to the north, not moving, probably three-fourths of a mile distant. He then proceeded to the switch stand west of defendant's track, and lined up the derail by the operation of the switch, and again went back to defendant's track, and observed it in each direction without seeing any headlight approaching or hearing any whistle or bell; whereupon he gave the signal to his engineer to come ahead on the crossing, standing in the middle of the track until the engine of his train reached him, when he mounted the engine; and that, as he was looking back to see if the rear brakeman was going to get off to operate the switch after the train had crossed, his attention was attracted by the exhaust of defendant's engine coming from the north, and he noticed sparks from its smoke stack. Although he at once warned his engineer of the approaching danger, defendant's engine struck the caboose before the train could be gotten clear of the crossing.
As to the negligence of defendant's engineer, there was a clear case for the jury. He testified that as he left Perry, he saw a green light on the signal standard at the crossing, but did not look again at the light before the collision; and the evidence tended to show that had he looked he would have seen this light show red in time to have stopped his engine on the danger signal and avoided the collision, for, although the red lights on the switch stand may have been cut off from his view by the passing train, the red light on the signal standard could not have been thus obstructed from his view.
The contention for appellant is that its engineer was under no obligation to look out for such danger signal, as it was the duty of the interurban company to look out for an approaching engine on the defendant's track, and have its train clear of the crossing. The argument is that the defendant owed no duty with reference to avoiding a collision at the crossing different from that which it owed to trespassers or mere licensees attempting to cross its track at any other place on its right of way; that is, the duty to avoid a collision, if possible, after the danger of such collision became apparent. It seems to us that this argument is not sound. The employees of defendant were bound to know that the crossing was a place of danger, and that it might rightfully be in use by cars of the interurban company. The fact that the defendant's engine was entitled to precedence at the crossing, and that it was the duty of the employees of the interurban company to look out for the approaching engine on defendant's track, did not justify defendant's engineer in assuming that the crossing was not a place of danger. The situation was analogous to that existing where a highway crosses the track of a steam railroad. The trains operated along the railway track are entitled to precedence at such crossing, and the traveler on the highway approaching the crossing is bound to look out for approaching trains; nevertheless it is the duty of the engineer on such an approaching train to be on the lookout for persons at the highway crossing, and he is not justified in wholly disregarding possible danger to a traveler, and assuming that such traveler on the highway will avoid the possibility of being struck by an engine. Illinois Central R. Co. v. Benton, 69 Ill. 174; Pittsburg, F. W. & C. R. Co. v. Dunn, 56 Pa. 280; Texas & P. R. Co. v. Cody, 166 U.S. 606, (17 S.Ct. 703, 41 L.Ed. 1132).
The duty to be on the lookout for possible dangers to persons crossing the track exists also at places where, as is known to the railway company, persons are in the habit of crossing although it is no public highway. Thomas v. Chicago, M. & St. P. R. Co., 103 Iowa 649, 72 N.W. 783; Booth v. Union Terminal R. Co., 126 Iowa 8, 101 N.W. 147; Bourrett v. Chicago & N.W. Co., 152 Iowa 579, 132 N.W. 973. And we have recently held that a railway company must exercise reasonable care to avoid injury to a landowner using a private crossing, although, of course, the trains are entitled to...
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