Hitchcock v. Iowa Southern Utilities Co. of Delaware

• Decision Date: 27 October 1942
• Docket Number: 45676.
• Citation: 6 N.W.2d 29,233 Iowa 301
• Parties: HITCHCOCK v. IOWA SOUTHERN UTILITIES CO. OF DELAWARE.
• Court: Iowa Supreme Court

6 N.W.2d 29

233 Iowa 301

HITCHCOCK v. IOWA SOUTHERN UTILITIES CO. OF DELAWARE.

No. 45676.

Supreme Court of Iowa

October 27, 1942

Appeal from District Court, Wapello County; Heinrich C. Taylor Judge.

Gilmore, Moon & Bannister, of Ottumwa, Cosson Stevens & Cosson, of Des Moines, and Glenn R. Donaldson, of Kansas City, Mo., for appellant.

McNett Kuhns, McNett & Aiken, of Ottumwa, and Valentine & Valentine, of Centerville, for appellee.

STIGER Justice.

This accident occurred about 10:00 o'clock on the morning of August 26, 1937, where primary highway number 60, a north and south road, crosses the main and switch tracks of defendant's interurban railway at approximately right angles about five miles south of Albia. The switch track is south of the main track. Decedent was approaching the crossing from the south and defendant's train was approaching from the west. The day was warm, clear and quiet and the pavement dry. The tracks of the Wabash Railroad Company run east and west about 510 feet south of defendant's tracks. The highway is straight and practically level for a distance of 700 feet south of the railroad crossing.

The surface of the ground south of the tracks and west of the highway was comparatively level and slightly lower than the highway and tracks. West of the highway and immediately south of defendant's right of way there was a field of tomatoes and cucumbers. South of this vegetation there was a field of pop corn planted June 28, the height of which was estimated by the owners to be from four to four and one-half feet. A witness for plaintiff testified the corn was from six to seven feet high.

The train, approaching from the west, consisted of the motor car or locomotive, a box car, a cinder car and caboose. The locomotive was twelve feet four inches high, the box car thirteen feet eight inches high, the cinder car eight feet and the caboose thirteen feet six inches in height. The train was one-hundred and forty-four feet in length. The transmission lines and trolley poles were thirty-three feet above the ground. There was a railroad crossing sign about four feet high erected and maintained by the highway commission about 30 feet north of the Wabash tracks and about fifteen feet east of the pavement. It was the Standard highway commission sign containing the letters "R. R."

On the east side of the pavement and south of defendant's tracks about twenty-five feet was a sign with the lettering "Railroad Crossing." The lettering was eight inches high. About thirty feet north of the tracks and west of the pavement there was a standard railroad sawbuck warning sign.

Exhibit D-1, which is here inserted, is a fair representation of the signs maintained by defendant as they were on the day of the accident. The exhibit also shows a part of the skid marks made by the tires of decedent's car as he approached the crossing. With reference to the railroad warning sign south of the tracks an employee of defendant testified:

Exhibit D-1

RPT.CC.1942105727.00010

(Image Omitted)

"These signs was put up for extra precaution. They thought they would make a few of them and put them up at a few crossings--thought it would help attract attention so they would pay more attention to the crossing--is what they were put up for. They was only put up at a few crossings to try it out."

The signs were plainly visible from the Wabash tracks which were 510 feet south of the crossing. The train was equipped with air brakes, hand brakes, sand valve and air operated bell and whistle. These instrumentalities were in good operating condition at the time of the accident. The train approached the crossing at a speed of about 25 miles an hour. The speed of the automobile was variously estimated at from 65 miles to 100 miles per hour. We are satisfied that the automobile was being driven about two and one-half to three times faster than the train, or approximately 65 miles per hour. The automobile was on the east side of the pavement as it approached the crossing and ran into the motor car.

At the time of the collision, the front part of the locomotive had passed the east edge of the pavement and was struck by the automobile back of its front trucks. The front part of the motor car was derailed. The crash was heard one-half mile away. Decedent was driving a 1937, four-door 143 horse power Buick sedan, weight about two tons, and it could be driven from 80 to 95 miles per hour.

1. Section 8018, 1939 Code reads in part: "8018 Signals at road crossings. A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed;" etc.

Appellant's first assignment is that a conflict in the evidence required the question of compliance with this statute to be submitted to the jury.

Defendant concedes the signals were not given sixty rods west of the crossing but contends its negligence to observe this statutory requirement was not a proximate cause of the accident. Because of our disposition of the case it is unnecessary to pass on this issue.

However, we should consider whether there is a conflict in the evidence on the question whether the signals required by the statutes were given before the crossing was reached. The engineer, brakeman and roadmaster Stites, who was on the train, testified the whistle was sounded and the bell was rung about 500 feet west of the crossing and five disinterested witnesses for defendant testified the signals were given from 250 to 300 feet west of the crossing.

Two witnesses for appellant, Mr. Matthai and Mr. Feldman, testified that they did not hear a whistle or bell. They were approaching the intersection from the north in Mr. Feldman's car which was two years old at a speed of from 45 to 50 miles per hour. The car windows were open. They saw the train close to the highway when they were 1,000 feet north of the tracks. They were engaged in conversation when they approached the intersection. Mr. Feldman testified on cross examination:

"As we were coming south Mr. Matthai and I were engaged in conversation. I do not remember of anything in particular we were talking about. It was not about the railroad crossing.

"Q. Now, Mr. Feldman, when you say you didn't hear a whistle or bell the most you want the jury to understand is you didn't notice any whistle or bell? A. No, I did not.

"Q. You don't want to tell the jury that the whistle or bell didn't ring, do you? A. No I don't.

"Q. And you weren't paying any particular attention to that feature? A. No. I wasn't.

"Q. You wasn't looking for it? A. No.

"Q. And you merely want to say you don't recall hearing it? A. I don't recall, no sir.

"Q. As I understand it, you were in conversation with Mr. Matthai up to the time you reached this crossing? A. Yes, sir."

On re-direct examination he testified:

"Q. You testified that at no time did you hear a train whistle or train bell? A. That is right.

"Q. Do you know any reason why you could not have heard a train whistle or train bell if same had been blown? A. I don't know--the only reason I have is because I was conversing with Mr. Matthai and paid no attention to it."

Mr. Matthai testified:

"Q. Now, as I understand it, according to your testimony as you were approaching this crossing from the north, coming down from Albia, you were in conversation with Mr. Feldman and was not paying any particular attention to anything? A. That is right.

"Q. What you merely want to tell the jury is that as far as you recall you didn't hear a whistle blow or a bell rung? A. That is right.

"Q. You don't want to say to this jury that a whistle was not blown or a bell was not rung--merely that you didn't hear one, isn't that right? A. I did not hear either a whistle or a bell.

"Q. That is all you want the jury to understand, that you did not hear them yourself? A. That is right."

Neither Mr. Feldman nor Mr. Matthai heard the crash. In view of the positive evidence the signals were given, the negative evidence of the witnesses does not, under the circumstances, create a conflict on the evidence. Lenning v. Des Moines & C. I. R. R., 209 Iowa 890, 894, 227 N.W. 828.

II. Section 8000, 1939 Code provides that every corporation operating a railroad shall erect at all points where the railroad crosses a public road "a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains."

Appellant states:

"We urge two alternative propositions:

"1st: Sec. 8000 requires the maintenance of a warning sign at railroad crossings on both sides of the highway.

"2nd: Even if the statute was not so construed to require signs on both sides of the highway, ordinary care at any intersection with a paved trunk highway would require signs on both sides of the highway."

We cannot agree with her propositions. The statute requires a sign at the crossing for the purpose of warning travelers of the proximity of the tracks and the standard sawbuck sign north of the tracks and west of the highway complied with the statute. In Dolan v. Bremner, 220 Iowa 1143, loc. cit. 1146, 263 N.W. 798, loc. cit. 799, plaintiff was approaching the tracks from the west. The court said: "It appears without dispute in the evidence that the railroad company did comply with the requirement of our statute by maintaining on the east side of its railroad tracks and to the north side of the highway the ordinary cross-arm warning sign."

With reference to appellant's second proposition it is well settled in this state that...