Graves v. Chicago, Rock Islamd & Pacific Railway Co.

• Decision Date: 14 December 1928
• Docket Number: 39300
• Citation: 222 N.W. 344,207 Iowa 30
• Parties: J. A. GRAVES, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

222 N.W. 344

207 Iowa 30

J. A. GRAVES, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 39300

Supreme Court of Iowa, Des Moines

December 14, 1928

Appeal from Lucas District Court.--W. M. WALKER, Judge.

Action for damages to a threshing outfit at a private crossing over defendant's railroad. Trial to the court and a jury. Verdict and judgment thereon for the plaintiff. The defendant appeals.--Reversed and remanded.

Reversed and remanded.

J. G Gamble, A. B. Howland, and J. A. Penick, for appellant.

G. C Stuart and W. W. Bulman, for appellee.

WAGNER J. STEVENS, C. J., and DE GRAFF, ALBERT, and MORLING, JJ., concur.

OPINION

WAGNER, J.

At a private crossing, one of defendant's trains collided with plaintiff's threshing outfit, consisting of a tractor and a separator. The plaintiff is asking to recover the damages to his property, alleging that the same were caused by the negligence of the defendant, its agents and employees. The allegations in the petition, as to negligence, are as follows:

"(a) That the planks laid on each side of the rails on the crossing were not of sufficient strength, and would not, and did not, come up level with the top of the rails, but left a space of about three inches between the top of the plank and the top of the rail, and there were no planks between the rails; and plaintiff alleges that, if said crossing had been properly constructed and maintained, as provided by law, he could have safely passed over said crossing.

"(b) Plaintiff alleges that defendant was negligent in the operation of its said train, under the conditions that existed, at the rate of speed at which it was operated.

"(c) Plaintiff alleges that defendant was negligent for the reason that, after the tractor and threshing machine was stalled on the track, defendant's agents and employees were signaled that danger was ahead; and after they knew, or should have known, and could, with the exercise of ordinary care, have known that said tractor and threshing machine were stalled on said track, they failed to use any means whatever to slow down or stop the train, or prevent said accident, but, on the contrary, the engineer in charge of said train abandoned the engine and jumped from the train.

"(d) Plaintiff further alleges that one Crabel Mason was standing in the middle of the track, about 400 or 500 feet from where the tractor and threshing machine were stalled, signaling to the engineer in charge of the train, and that from this place the engineer could have seen, and plaintiff alleges that he did observe, the condition of danger ahead, but that he made no effort to prevent the collision which immediately followed.

"(e) Plaintiff further alleges that defendant was negligent for the reason that defendant's employees had knowledge of this private crossing, which has been used for years, and knew the condition of the same; knew that it was often used in moving heavy machinery across the track; and their failure to keep a lookout over said conditions constituted negligence."

The said petition also contains the allegation that the plaintiff was free from contributory negligence.

The defendant answered by general denial, and that plaintiff's negligence caused or contributed to the damage sustained.

Upon trial to the court and a jury, a verdict was returned in favor of the plaintiff, and a judgment rendered thereon against the defendant. From this judgment, the defendant has appealed.

The defendant assigns as error the action of the court in overruling the motion of the plaintiff for a directed verdict, made at the close of plaintiff's evidence, and renewed at the close of all of the evidence; the giving by the court of certain instructions; and the refusal of the court to give certain instructions asked by the defendant.

Just before the time of the collision, the plaintiff had finished a job of threshing, on the west side of the defendant's railroad, for Crabel Mason, a tenant on the Milne farm. A portion of said farm lay on each side of the railroad, and, in order to get to and from that portion of the land on the west side of the railroad, it was necessary to pass over the private crossing in question. At the crossing, the railroad track runs nearly north and south, and the ground slopes very abruptly from the east to the west. There is considerable rise from the track to the east right-of-way fence. The west right-of-way fence is approximately 10 feet lower than the track. The slope from the railroad to the west gate is not gradual, but is steeper next to the track. There is testimony that the track is from 5 to 7 feet higher than at a point from 10 to 14 feet west. On the track, on each side of each rail, there was a plank 2 or 3 inches thick, spiked through shims to the ties; between the two inner planks there was ballast, or cinders. There is testimony that the top of the rails was as much as 3 inches higher than the planks on either side, but other testimony that the rails were very little, if any, higher than the planks. The crossing is about 1 1/2 miles from Purday, the first station to the south, and between 3 and 4 miles from Melcher, the first station to the north. The plaintiff, with his machinery, crossed this crossing from east to west on the forenoon of the day in question, to wit, August 12, 1926, on which day the sun set at 7:03 P. M. The collision occurred in the dusk of the evening, between 7:30 and 8 o'clock, the plaintiff's testimony not fixing the exact time; but the engineer in charge of defendant's train testified definitely that the accident occurred right at 7:50 P. M. The crossing is approximately at the north end of a curve. One can see down the track over 600 feet, and there is nothing in the record to show that, in so far as the view is concerned, it could be termed a dangerous crossing. Shortly before the plaintiff attempted to cross the track from the west to the east, a train had gone south. At the time of the accident, Mason and Ashby were with the plaintiff, rendering such assistance as they could. Mason had gone a considerable distance to the south, to look for an approaching train from that direction, and returned, reporting that he saw smoke from what he thought was an engine standing still at Purday, which he believed to be the engine that had shortly before passed southward. The plaintiff then made the attempt to cross the track with his outfit. The front wheels of the tractor passed over the west rail; but when the drive wheels struck the plank, the traction tore it from its place, and when said wheels reached the rail, they began to spin on the top of the rail. The separator was blocked, to keep it from going to the west, and uncoupled from the tractor, and a chain was hitched to the separator and tractor. The plaintiff then replaced the plank, and, the chain being slack, the tractor passed over the west rail; but when the plank and east rail were reached by the drive wheels of the tractor, the slack in the chain having been taken up, the same difficulty occurred as at the west rail. At this juncture, the plaintiff and his crew saw the reflected rays of light from the headlight on the engine of the train coming around the curve from the south. Plaintiff testifies, in substance, that Mason went down the track to flag the train, and that he followed him; that he saw Mason waving his arms for the purpose of flagging the train; and that, in his judgment, Mason was at that time 400 or 500 feet from the crossing; that, when the engine was at least 100 feet south of Mason, two sharp whistles were sounded; that he was about half way between Mason and the crossing; that he first noticed any apparent slacking of the speed of the train as the engine passed by him. He was then asked, "What called your attention to the fact that the train was being slowed down as it passed you?" and he answered, "The squeaking of the brakes." He gave it as his judgment that the train, as it passed him, was advancing at a speed of from 17 to 20 miles an hour. The train struck the outfit, and came to a full stop from 100 feet to 200 feet north of the crossing. As it approached the crossing, the train was coming downhill, the percentage of the grade being about one per cent.

The engineer testified, in substance, that the train, being a freight train, consisted of 35 cars, and that the tonnage of the train was 2,250 tons; that he observed a man giving a signal when he was about 150 feet from him; that it is his judgment that the party signaling was 300 to 350 feet from the crossing; that he immediately applied the brakes at emergency, and applied sand; that, after seeing the signal he naturally looked farther ahead, and could see a dark outline of some object on the crossing, which he knew should not be there; that he could not tell at that time what it was; that there was nothing further that could have been done to stop the train; that the steam had been cut off before he received the signal; that they were drifting down hill; that the train was stopped in as short a distance as it could have been stopped; that, when the engine was approximately 100 feet south of the crossing, he stepped off on the ground, and received four fractures of his right arm. There is other testimony in the record, but we deem the foregoing sufficient...