Hammarmeister v. Illinois Cent. R. Co.

• Decision Date: 16 October 1962
• Docket Number: No. 50673,50673
• Parties: Roy R. HAMMARMEISTER, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY and William P. Brennan, Appellees.
• Court: Iowa Supreme Court

Page 463

117 N.W.2d 463

254 Iowa 253

Roy R. HAMMARMEISTER, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY and William P. Brennan, Appellees.

No. 50673.

Supreme Court of Iowa.

Oct. 16, 1962.

Max Putnam, of Putnam, Putnam & Putnam, Des Moines, Robert Buckmaster of

Beecher, Buckmaster, Beecher & Lindeman, Waterloo, John Sweeney, Des Moines, for appellant.

L. J. Cohrt and Eldon McCann of Swisher, Cohrt, Swisher, Finch & McCann, Waterloo, for appellees.

PETERSON, Justice.

On February 17th, 1958, plaintiff was driving a 1951 Ford Tandem north on what is known as the Coalville road, two miles east and two miles south of Fort Dodge. Defendant's main line from Chicago to Sioux City runs east and west in that area. Plaintiff's truck, weighing 17 ton, with its load, struck the side of defendant's two diesel engines as the train was crossing the road. Defendant suffered heavy damage as to its equipment, the front of plaintiff's truck was demolished, and plaintiff received serious bodily injuries. Plaintiff sued the railroad company and the engineer for damages. The case was submitted to the jury, which returned a verdict for defendants. Plaintiff appealed.

Appellant assigns 8 errors relied upon for reversal. He alleges the court erred: 1. In failing to submit to the jury the issue of defendants' negligence for failure to have flashing lights or a mechanical warning device at the crossing. 2. In failing to admit in evidence exhibit HH, which was a photograph of a signal light installed at this crossing about 2 years after the accident and shortly prior to the trial. 3. In failing to submit to the jury an issue of defendants' negligence by reason of the train crossing the road at a high rate of speed. 4. In giving instructions 12, 13 and 14 and failing to give plaintiff's requested instructions 2 and 3, pertaining to the same subject matter. 5. In giving instruction no. 13, which pertained to contributory negligence and refusing to give plaintiff's requested instruction no. 1, pertaining to the same subject. 6. In failing to submit to the jury a specification of negligence as to adequate warning of the approach of the train at the crossing involved. 7. In giving instruction no. 22, pertaining to the evidence of Mr. Hoover, the photographer, as to the signal mechanism placed at the crossing shortly prior to the trial of the case. 8. In overruling plaintiff's motion for new trial.

The important assignments of error are nos. 1, 2 and 3.

I. Plaintiff was 32 years of age. He was employed as a truck driver for Iowa Lumber Company of Iowa Falls. He testified he had worked for them since 1946. He left Iowa Falls about 5:10 a. m., on the date of the accident and traveled south on the Coalville road to a point which was about 800 feet south of defendant's crossing. He then turned west and traveled about a mile to a plant known as the 'Best Wall Gypsum Company' for his load.

After loading he drove back east to the Coalville road, which was black topped. The day was clear and very cold; 18 degrees below zero. The accident happened about 9:30 in the morning. His load was so heavy he was driving in second gear at a rate of 12 to 15 miles per hour.

Plaintiff's first observation of defendant's track was at a point 410 feet south of the railroad crossing. At that point he looked in a northeasterly direction and could clearly see the track from the crossing to a point 1700 feet east. He testified he saw no train. He was familiar with the road and the crossing, having driven over it about once a month for 8 years. He again looked to the right when he was approximately 75 or 80 feet from the crossing. He testified he only looked up the track at that time a distance of someplace between three and four hundred feet. He again saw no train. He testified there was nothing that interfered with his vision as far east as a shed near the railroad track 1700 feet from the crossing. About 350 feet before reaching the crossing he looked north on the Coalville road a half mile, and there was no traffic approaching.

The fields to the east of the road were clear and barren. There had been beans but everything had been harvested. The surface of the road was dry. There was no fog nor snow. He testified that there was nothing that diverted his attention from driving and making his observations. He did not slow up but kept driving at his speed of 12 to 15 miles per hour. The train had two engines. His truck struck the rear part of the lead engine and front part of second engine. He testified he heard no bell nor whistle.

Paul Starns was a co-employee. He also had come that morning for a load of material and was driving about 100 feet behind plaintiff. He testified plaintiff was traveling from 12 to 15 miles per hour. He also said he did not hear the bell or whistle of the train, although he saw the train coming when it was about 300 feet east of the crossing. He testified the speed of the train was between 75 and 90 miles per hour.

In looking northeast from the mark 410 feet south of the crossing it appeared without question the whole terrain was level except the track itself was a little higher than the field.

Mr. Hoover, a photographer, testified for defendants. He identified many photographs as to the scene. Some of them were taken a few days before the trial of the case in September 1960.

The only other witnesses for defendants were the defendant, Engineer, and three trainmen. Their testimony as to what conditions they could observe was identical with plaintiff and his witness Starns except they testified the train was going approximately 55 miles per hour.

Mr. DeBerg, the fireman, was in the seat on the left side of the lead engine. He testified he saw the truck as it was coming north from the farm buildings about 400 feet south of the crossing. It maintained a steady speed and it was only when it reached about 30 feet from the crossing that he realized from plaintiff's actions he was not going to stop. He then yelled to the engineer who was on the right side of the lead engine 'they are going to hit us.' At that instant plaintiff hit.

The impact of plaintiff's truck on the train was such that the air brake line broke, and the train was about 1500 feet past the crossing before it rolled to a stop.

II. The question of the duty and liability of a railroad company when it transverses country highways or city or town streets is as old as the history of railroading in Iowa. Throughout many years the general principle adopted by our courts has been the same. As to the requirement of installing automatic crossing bells or other signals warning of the approach of a train, the rule has always been, and is now, that to justify such equipment the crossing must be more than ordinarily dangerous. It is only where the ordinary statutory signals are insufficient that additional warning is required.

The ordinary statutory requirements are: 1. Placing the cross buck warning on the road near the crossing, Section 478.1, Code of Iowa, I.C.A. 2. Requirements with reference to use of bell and whistle by any train approaching the crossing, Section 478.19, Code of Iowa, I.C.A.

Our judicial history is replete with many crossing cases similar to the case at bar. We will cite a few, where the facts are somewhat analogous to the instant case. Annacker v. Chicago, R. I. & P. R. Co., 81 Iowa 267, 47 N.W. 68, 69; Glanville v. Chicago, R. I. & P. R. Co., 190 Iowa 174, 180 N.W. 152, 155; Butters v. Chicago, M., St. P. & P. R. Co., 214 Iowa 700, 243 N.W. 597, 599; O'Brien v. Chicago, R. I. & P. R. Co., 203 Iowa 1301, 214 N.W. 608, 609; Hitchcock v. Iowa Southern Utilities Co., 233 Iowa 301, 6 N.W.2d 29; Wickman v. Illinois Central R. Co., Iowa, 114 N.W.2d 627.

The early case of Annacker v. Chicago, R. I. & P. R. Co., supra, involved a traveler crossing a railway track one dark foggy morning in December 1887.

The court held that under certain conditions the case was for the jury. The important matter in the case is that it expresses the position of this court at that early date. It is still a general principle of this court, seventy-five years later. 'It is not negligence per se for a railway company to omit to keep a flagman at every street or highway crossing, at any given hour of the day or night. Whether such omission is negligence depends upon the circumstances,--such as the frequency with which trains are passing, the amount of travel, the opportunities, or want of opportunities, for travelers observing the approach of trains, and the like.' 47 N.E. p. 69.

The case of Glanville v. Chicago, R. I. & P. R. Co, supra, has some features similar to the instant case, except the accident happened in a town instead of in the country. The second allegation of error in the case was: '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 maintaining a watchman at the Mill street crossing.' 180 N.W. p. 153.

The question is discussed at some length in the opinion of this court, written by Justice Ladd. The final general conclusion is: 'The law seems to be fully settled that a railway company is required to station a flagman or install electric or other signaling devices only when, owing to its situation, surroundings, or use, the crossing is more than ordinarily dangerous; so dangerous and of a character such that other than statutory warnings are essential to the reasonable protection of travelers on the highway about to cross the railroad tracks. We are of opinion that the evidence was insufficient to carry that issue to the jury, and that the court erred in submitting it.' 180 N.W. 155.

The case of Butters v. Chicago, M., St. P. & P. R. Co., supra, involved a small child two years of age who was injured while riding in an automobile in the town of Zwingle. The case is similar to the instant case in that the automobile struck the train. Trial court...