Hartman v. Chi. G. W. Ry. Co.

• Decision Date: 15 December 1906
• Parties: HARTMAN v. CHICAGO G. W. RY. CO.
• Court: Iowa Supreme Court

132 Iowa 582

110 N.W. 10

HARTMAN

v.CHICAGO G. W. RY. CO.

Supreme Court of Iowa.

Dec. 15, 1906.

Appeal from District Court, Chickasaw County; L. E. Fellows, Judge.

Action at law to recover damages for injury to plaintiff's team and other property upon a railway crossing. There was a directed verdict in favor of the defendant, and plaintiff appeals. Reversed.Springer, Clary & Condon, for appellant.

Smith & O'Connor, for appellee.

WEAVER, J.

The testimony on part of plaintiff tended to show that at a point near the plaintiff's residence a public road intersected the defendant's right of way, but by reason of the excavation for the railway track on the highway at this point was interrupted. To accommodate the travel until an appropriate highway crossing should be constructed, persons using that route were permitted to depart therefrom, and drive along the right of way to the north to a point in the neighboring field where a crossing over the track had been provided, and by that route the other side of the railway. Whether this crossing was a temporary expedient, adopted by the defendant for use while the regular public crossing was impassable, or was constructed as a private crossing for the benefit of the adjacent landowners, is not quite clear in the record. It appears, also, that from the point where travel was diverted from the public road to the crossing in the field the railway passes through a deep cut, and a person driving a team along the path at the top of the cut cannot see trains approaching from the south, but by going to the brink of the cut a view of the track for a considerable distance may be obtained. The evidence of the witnesses is also to the clear effect that for a long time it had been the custom and practice of the defendant's enginemen to sound the whistle on approaching this crossing from the south. On the day in question plaintiff's servant, a man 35 years old, and of considerable experience in handling horses, was driving a team attached to a wagon loaded with three cans of milk in the direction of a creamery located on the opposite side of the railway. Turning in upon the right of way on the east side of the track he drove along the route to the north which we have just described. He testified that, just before reaching that portion of the route where the track was hidden from view, he looked back, and there was no train in sight. Again, before reaching the crossing in the field, he stopped his team to hitch up a tug that had become unhooked, and at this time looked and listened as well as his situation would permit, but neither heard nor saw the approach of a train. He also claims that from this point until he reached the point of collision he continued, to the best of his ability, to look and listen for trains from both directions, and that as he swung his team, which “was prancing and dancing along,” in upon the crossing, a train came through the cut from the south at a high rate of speed, striking and killing the horses, and ruining the harness and wagon. Several witnesses concur in the statement that the engine which collided with the team did not sound the whistle for the crossing that morning. We are impressed with the belief that the case thus made was one for the consideration of the jury, and that there was error in directing a verdict. The defendant offered no testimony, and for the purposes of the motion plaintiff was entitled to have taken as established every fact which his evidence fairly tended to prove. Assuming that the driver of the team told the truth (and his credibility was for the jury alone), we cannot say, as a matter of law, that he was himself guilty of negligence contributing to his injury. The rule of “stop, look, and listen” is not of invariable application. It is easy to say and it is a correct proposition that a person approaching a railway crossing must bear in mind that it is a place of danger, and be vigilant to discover the approach of trains, and use reasonable care to avoid injury therefrom; but whether such reasonable care requires him to stop, look, and listen, or whether, having done so, he must stop, look, and listen again, whether he may place any reliance on the absence of danger signals, or upon any other given fact or circumstance, depend so much upon the peculiar conditions by which he is surrounded, that, save in cases exceptionally free...