High v. Waterloo, C. F. & N. Ry. Co.

• Decision Date: 17 October 1922
• Docket Number: No. 34361.,34361.
• Court: Iowa Supreme Court
• Parties: HIGH v. WATERLOO, C. F. & N. RY. CO.

195 Iowa 304

190 N.W. 331

HIGH

v.WATERLOO, C. F. & N. RY. CO.

No. 34361.

Supreme Court of Iowa.

Oct. 17, 1922.

Appeal from District Court, Linn County; Milo P. Smith, Judge.

Action for damages resulting from a collision at a crossing, between a rig driven by the plaintiff and an engine operated by the defendant. Plaintiff recovered damages, and defendant appeals. Affirmed.Barnes, Chamberlain & Hanzlik, of Cedar Rapids, and Pickett, Swisher & Farwell, of Waterloo, for appellant.

James E. Patterson and Rickel & Dennis, all of Cedar Rapids, for appellee.

FAVILLE, J.

The appellant operates an electrically equipped interurban railway between the cities of Cedar Rapids and Waterloo. Cold Stream avenue is a street in the outskirts of the city of Cedar Rapids. It extends east and west, and intersects the tracks of the appellant company practically at right angles. As one approaches this crossing, passing eastward on Cold Stream avenue, it is necessary to pass through a cut that is about 1,000 feet in length, leaving a bank on the south side of Cold Stream avenue approximately 20 feet in height. The point where it is first possible to see past the bank to the south is a little more than 21 feet from the west rail of appellant's tracks. At approximately the point where the bank breaks away to the east there is located a tall pole for the purpose of carrying the high-voltage lines across Cold Stream avenue. This pole is approximately 13 inches in diameter, and is placed 21 feet and 8 inches west of the west rail. There is also a pole near here with a wide signboard bearing the words “Station 1/2 mile.” The ordinary poles upon which the trolley line of appellant is carried are also located on the west side of appellant's track, and are from 5 to 8 feet west of the west rail. These poles are about approximately 13 inches in diameter. The usual warning crossing sign is placed on the south side of Cold Stream avenue, 300 feet west of the crossing. There was no automatic bell or other device for signaling the approach of a train. On the north side of the avenue, and west of the track, there is an orchard and farm buildings, and farther to the north there is a curve in the railroad track. The traveled portion of Cold Stream avenue at the place in controversy is about 16 to 18 feet in width, and the road slopes gradually from the traveled portion to each side. On the north side, near the railroad track, there is a quite well-defined ditch, and on the south side is a shallow ditch. The traveled portion of the track at the time of the accident was covered with cinders. At about 5 o'clock in the afternoon of the 13th of June, 1920, the appellee was driving eastward on Cold Stream avenue when he approached the crossing in question. He was driving a pony hitched to a light spring wagon. He was sitting on the right side of the seat, holding a little child about three years old on his left knee. His wife was seated beside him, carrying a baby on her lap. The evidence tends to show that he was driving on a walk as he approached the crossing. Some of the witnesses described the gait as a “dogtrot” and that the speed was about that at which an ordinary horse would walk. The appellee testified that, as he passed the embankment at approximately the point where the high-tension line pole is located, 21 feet and 8 inches west of the west rail of the appellant's track, he looked southward, and at that point could and did see a distance of approximately 150 feet; that he neither saw nor heard any approaching engine; that he then turned and looked to the north, still continuing on his course, and that he looked to the south a second time, and then observed the appellant's engine within about 75 feet of the crossing; that his pony was at that time upon the crossing, and as he endeavored to get it across the engine struck the rear wheel of his wagon, throwing him out, demolishing the rig, and causing the injuries complained of. The speed of the engine, as estimated by the witnesses, varies all the way from 15 miles per hour to 60 miles per hour. It was an electric freight engine, without any train attached, and was not running on any regularly scheduled time. It is appellant's contention that no warning signals were given by either whistle or bell.

I. It is urged that appellee was guilty of contributory negligence as a matter of law, and that the court should have sustained appellant's motion for a directed verdict. The appellee approached a known dangerous crossing, at about 5 o'clock in the afternoon on a day in midsummer. He was driving a gentle pony. It is contended by appellant that the “stop rule” should apply in the instant case; that it was not enough for the appellee to have looked and listened for a train, even if he did so, as he approached the crossing; that the situation and attendant circumstances were such that he was guilty of negligence as a matter of law in not also stopping his pony before passing upon the appellant's tracks.

[1][2][3] A person approaching a railway crossing is bound to know that he is approaching a dangerous place. As one has laconically said, “It is always train time at any railroad crossing.” To be free from negligence, one must exercise the degree of care and caution that a man of ordinary care and prudence would exercise under the same or similar circumstances.

In Hinken v. Iowa Cent. Ry. Co., 97 Iowa, 603, 66 N. W. 882, we said:

“We have iterated and reiterated the doctrine that a railway track is always a place of danger, and that it is the duty of one about to cross it, even in the absence of any special warnings or signals on the part of those in charge of the train, to use his senses in order to avoid injury.”

See, also, Swanger v. Ry. Co., 132 Iowa, 32.

In Schaefort v. C., M. & St. P. Ry. Co., 62 Iowa, 624, 17 N. W. 893,Nixon v. C., R. I. & P. Ry. Co., 84 Iowa, 332, 51 N. W. 157,Banning v. Railway Co., 89 Iowa, 74, 56 N. W. 277,Moore v. Railway Co., 102 Iowa, 595, 71 N. W. 569,Wilson v. Railway Co., 150 Iowa, 33, 129 N. W. 340, 34 L. R. A. (N. S.) 687, and many similar cases we have recognized that, under certain circumstances and conditions, which of necessity vary greatly in the different cases, a duty may rest upon one about to cross a railway track to not only look and listen, but likewise to stop before venturing upon the crossing. The true test for every case is whether or not, under all the existing circumstances, the person approaching a railway crossing, and about to cross, has exercised the degree of care and caution which a person of ordinary care and prudence would have exercised under the circumstances. Ordinarily that question is peculiarly one for a jury. Cases may arise where, underthe proven facts, the person injured has so failed to act as a man of ordinary care and prudence that the court must hold, as a matter of law, that he has been guilty of contributory negligence. One approaching such a place of danger must exercise his senses; he must look for an approaching train; he must listen for the warning signals which, when properly given, betoken danger. He must do all the acts and things that a man of reasonable care and caution would do at the time and place. Under certain circumstances, it may be negligence for him not to stop in order to listen for a train. The character of the vehicle which is being driven may make a material difference on the question of negligence in failing to stop. Obviously, one driving an automobile under control can more readily decrease or increase the speed of the vehicle than can one driving a team of horses. We are not disposed to adopt a hard and fast rule, and declare that a duty rests upon all persons approaching a railway track, even one where the view is partially obstructed, to invariably stop before attempting to effectuate a crossing.

[4] In the instant case, the appellee approached the crossing in question in daylight. He was driving a pony hitched to a light spring wagon. The roadbed was covered with cinders. There is no evidence to warrant the conclusion that the noise made by the pony and wagon was such as to materially prevent the appellee from hearing the signals of an approaching train, if properly given. There was no diverting noise in the neighborhood. The appellee says that he was right at the edge of the trolley pole, which is shown by the evidence to be 21 feet and 8 inches west of the west rail of the track, at the time he first looked to the south. When asked how far he could see down the tracks to the south from that point, he said: “It might have been 150 feet, and it might have been more and might have been less.” Once he said that when he looked the pony's head was about 5 feet from the rail, and that he was sitting 15 to 17 feet from the west rail. He says that he looked “at the edge of the bank and the trolley pole both.” He also says that after one comes past the pole that the view is unobstructed for several hundred feet; “about two or three blocks.” He testified: “I looked far enough so I thought I was safe in a southerly direction.”

Other witnesses who saw the accident, and who were familiar with the location, testified as to various distances that one could see down the tracks to the south upon emerging from the cut. One witness, describing the situation, said:

“The horse would probably be on the track before you could see any distance down the track--the horse's head would come to the track. You could probably see down the track for 50 feet, or maybe 100 feet.”

The driver of the school bus, who crosses the track every school day during the school year, said:

“One would have to be about 15 feet, I should judge, from the rail before he could see a train coming from the south.”

This witness says that in order to see a train the head of a horse would be about 3 feet from the rail, and the driver would be about 15 feet.

The party who lives immediately across Cold Stream avenue to the north says...