Gray v. Chicago, R.I. & P.R. Co.

• Decision Date: 01 July 1909
• Citation: 121 N.W. 1097,143 Iowa 268
• Parties: CHARLES O. GRAY, Administrator of the Estate of F. M. GRAY, Deceased, Appellee, v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant
• Court: Iowa Supreme Court

121 N.W. 1097

143 Iowa 268

CHARLES O. GRAY, Administrator of the Estate of F. M. GRAY, Deceased, Appellee, v. THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant

Supreme Court of Iowa, Des Moines

July 1, 1909

Appeal from Cedar District Court.--HON. W. N. TRIECHLER, Judge.

ACTION at law for damages. Verdict and judgment for plaintiff, and defendant appeals.

Reversed.

Carroll Wright, J. L. Parrish and Wright, Leech & Wright, for appellant.

I. J Hamiel, George W. Ball and Carl Mathers, for appellee.

OPINION

WEAVER, J.

Plaintiff 's intestate, F. M. Gray, was killed by a passing train upon a highway crossing of the defendant's railway. This action is brought to recover the resulting damages to his estate on the theory that defendant was negligent in failing to give the proper crossing signals, in the rate of speed at which the train was moving, in failing to use ordinary care to see the deceased or to know of his approach to the track and in neglecting to place a whistling post or other suitable sign to indicate to the engineman the proper place for giving the crossing signals. The answer denied generally all the allegations of the petition. At the point where the accident occurred, the course of the railroad extends from the southeast for some distance in a northwesterly direction. The highway from the north and the railway from the northwest approach each other at a somewhat acute angle. A short distance before reaching a point where these lines would intersect, the highway deflects to the southwest and crosses the railway very nearly at a right angle. To a traveler moving from the north and approaching the crossing the view of the railroad was obstructed by cuts, buildings and trees; but the extent and completeness of such obstruction are subjects of dispute in testimony. On the morning of April 26, 1907, the deceased, driving along this route alone in an ordinary single top buggy, was struck upon the crossing by a train from the northwest. This brief outline is probably sufficient to afford an idea of the general situation and enable the reader to understand the bearing of the testimony to which we shall hereinafter refer.

I. The witness who last saw the deceased before the instant of collision appears to have been a Mrs. Duple residing in the neighborhood. Her home is located four hundred and forty feet northeast of the railway crossing and two hundred and twenty-five feet east of the highway down which deceased was driving. From the place where Mrs. Duple was sitting in her kitchen in the northeast part of the house, a window on the north afforded a view of a short section of the highway some six hundred feet or more from the crossing. Looking straight west from the same position through a smaller window, she could see another but smaller section of the highway, while, turning her eyes still further to the left or southwest, and looking across another room opening from the kitchen and through a window on the opposite side of said room, a third section of the highway not far from the crossing came into view. According to her story she was seated at her work near the north kitchen window on the morning in question and noticed deceased as he came into her range of vision through each of the openings to which we have referred. She further testifies that at the first and second points of her observation deceased was driving slowly; but when she last saw him his team was moving at a trot. She did not see him enter upon the crossing, and did not witness the collision. As the pertinence and weight of this testimony, so far as it bears upon the question of contributory negligence, depend very largely upon the distance between the deceased where he was last seen and the crossing where he was struck, plaintiff took the evidence of an engineer who had made a survey of the surroundings and had tested the range of vision commanded by the several windows of the Duple residence from the point where Mrs. Duple says she was sitting at the time in question. According to this witness, to an observer so located a traveler on the highway from the north would come into view at a point seven hundred and eighty feet from the crossing; at six hundred and twenty feet he would pass out of sight; at four hundred and ten feet he would reappear in front of the small window on the west; at three hundred and forty-five feet would again disappear; at one hundred and ten feet he would come in range through the window in the front room, and at fifty-five feet from the crossing would pass finally from sight. Error is assigned upon the admission of much of this testimony. The point made may be illustrated by the following extract from the record. Counsel for plaintiff asked the witness: "State whether or not a person sitting in the chair in the kitchen at the point pointed out to you by Mrs. Duple could see a person traveling along the highway from the point mentioned by you fifty-five feet east of the crossing and at the place where he had reached the crossing." The question was objected to as incompetent, immaterial, leading, suggestive and invading the province of the jury. The objection being overruled, the witness answered: "A person could not be seen in that fifty-five feet from that point in the building." While the answer partakes of a conclusion, it is also a statement of fact determined or ascertained by mathematical and visual demonstration. It is one of the commonest occurrences, upon the trial of cases where witnesses have testified to observations made or objects seen from a given point, for the opposing party to call witnesses who claim to have made the test from the same point and have them testify that the things alleged to have been seen therefrom are not in fact visible. The witness in this instance stated the facts as he claims to have found them by personal observation and by measurements which he described in detail, and his statement that within certain limits a person could not be seen by an observer from a given location is clearly admissible under the recognized rule of our own cases. Quite in point, see: State v. Kidd, 89 Iowa 54, 56 N.W. 263; Brown v. Railroad Co., 94 Iowa 309; Trott v. Railroad Co., 115 Iowa 80; Rietveld v. Railroad Co., 129 Iowa 254. Other objections to the testimony of the engineer fall within the same general rule, and we need not further discuss them.

II. A witness was permitted to testify that he found no whistling post for this crossing along the defendant's road. Appellant takes the position that it was under no obligation to maintain such a post, and failure in that respect could not be negligence. An instruction to this effect was asked and refused, though the court appears to have ignored the issue in giving the charge to the jury. We are not prepared to say that as a matter of law failure to erect and maintain a whistling post or other mark or sign to warn the trainmen of the proximity of a crossing can in no case be held a negligent omission. The fact was charged in the petition as negligence, the allegation was not challenged by motion or demurrer, and, the evidence offered having direct bearing upon the issues as joined, there was no error in its admission. We are of the opinion, however, that if the trial court concluded that, in view of the whole case, this issue ought not to be submitted to the jury, it should have expressly withdrawn it with the evidence offered in its support. We might not be disposed to reverse on this ground alone; but, a reversal being found necessary on other grounds, we mention it that the objection may be avoided on a retrial.

III. Over the objection of the defendant plaintiff was permitted to show by several witnesses not only the general habit of the deceased with reference to his manner of making this crossing and particular incidents illustrating such habit, but was allowed to introduce testimony of particular instances of his approaching other railway crossings and of the precautions taken by him to guard against a collision. Other witnesses were also allowed to state their own personal experience in using this crossing when deceased was not present. We think the plaintiff was permitted to go far beyond the allowable limit in these respects. We can conceive circumstances under which, in the absence of more direct testimony, the general habit or practice of a person killed at a crossing may be inquired into as far as such habits may fairly tend to explain his presence at the time and place of collision, and perhaps as having some indirect bearing upon the question of contributory negligence. Railroad Co. v. McNeil, Ind. App., 66 N.E. 777; Railroad Co. v. Clark, 108 Ill. 113; Stone v. Railroad Co., 72 N.H. 206 (55 A. 359); Evans v. Railroad Co., 66 N.H. 194 (21 A. 105); Railroad Co. v. Bailey, 145 Ill. 159 (33 N.E. 1089). But to go into the realm of specific instances indicating care, on the one hand, or recklessness, on the other, with reference not only to this crossing, but to other crossings, and specific instances in the experience of other persons at other times and under other circumstances, is to introduce confusion into the trial and distract the attention of the court and jury to collateral issues. This question was before the court in Dalton v. Railroad Co., 114 Iowa 257, 259, where the railway company, in order to show contributory negligence on the part of the deceased who was killed in driving over a crossing in the nighttime, offered evidence that on occasions he had been seen to be asleep in his buggy. We there said: "This evidence was admitted on the theory, we suppose, that it would tend to show he was asleep at the time he was struck by the train, or perhaps to show his habit in this respect. Such evidence was clearly...