Jasper v. Chicago Great Western Ry. Co.

Decision Date26 June 1957
Docket NumberNo. 49194,49194
Citation248 Iowa 1286,84 N.W.2d 21
PartiesMerlin JASPER, Appellee, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, a Corporation, Appellant.
CourtIowa Supreme Court

Evans, Duncan, Jones, Hughes & Riley, Des Moines, and Kenline, Roedell, Hoffman & Reynolds, Dubuque, for appellant.

Clewell, Cooney & Fuerste, Dubuque, for appellee.

GARFIELD, Justice.

This is a law action to recover damages for destruction of plaintiff's automobile when struck by defendant's freight train at what plaintiff alleges appeared to be a public highway crossing in the country. From jury verdict and judgment for plaintiff of $1,306 defendant has appealed.

Defendant contends: 1) plaintiff was contributorily negligent as a matter of law, (2) it owed plaintiff no duty to erect barricades or warning signs near the alleged crossing, and 3) there was no evidence to support the claim of defendant's negligence in operating its train. Principal argument in support of the second contention and one of two arguments to support the third is that plaintiff was a trespasser upon defendant's track and it owed him no duty except to exercise reasonable care to avoid injury to his car after discovering its presence on the track.

It is of course our duty to consider the evidence in the light most favorable to plaintiff. Aitchison v. Reter, 245 Iowa 1005, 1009, 64 N.W.2d 923, 925, cited by defendant.

The collision occurred about 1 1/2 miles east of Dyersville. Defendant's track runs generally east and west about parallel to and 180 feet north of the Illinois Central railroad track. Paved U.S. Highway 20 also runs generally east and west about 900 feet south of the Illinois Central track. A public road known as Prier's Road extends north from U.S. 20 across both railroads and then turns east. None of these directions is true to the compass.

In July, 1954, this road between the two sets of tracks was not straight and its elevation was not uniform. Dubuque county decided to regrade the entire road and to straighten and level it between the two railroads. Straightening the road required moving the crossing over defendant's track about 70 feet to the east of its then location. One or more officials of the county asked representatives of defendant if it was all right to relocate this crossing and if the county could use dirt from defendant's right of way in making fills for the new grade. Defendant's representatives assented to both inquiries. The rights of way of the two railroads comprise all the land between the two tracks at this location.

The county commenced work on the road on or before August 1. The improvement was virtually completed by September 13 except for a strip 200 feet long north from defendant's track. At the north end of this stretch a culvert was to be placed across the road but its delivery was delayed. Between the track and the place for the culvert the rough grading was done but it was not smoothly graded and on the night of the collision an automobile could be driven over this part of the road, if at all, only with difficulty. Because of the delay in delivering the culvert the county's road making equipment was moved from the job to another location on September 13.

Plaintiff is a farmer living near Manchester. On the night of September 16 he drove his 1953 Chevrolet sedan north from Highway 20 on the new grade of Prier's Road. His wife and two small children were with him. He was going to visit a brother who lived farther north and east on this road. It was a very dark and rainy night. The new road from U.S. 20 to defendant's track was smoothly graded and appeared to be finished. Plaintiff could see the road north of defendant's track looked a little rough. But the road appeared to continue across on the north side of the track. There were no signs or barriers to indicate the road was being worked.

Plaintiff's automobile was almost on top of defendant's track before he noticed there were no planks between the rails. He tried to stop but his car slid across the south rail and suddenly became stuck between the rails which were 6 1/2 inches high. He and his wife did their best to move the automobile off the track but could not do so. While so engaged plaintiff saw the railroad signal light change color. He ran to the nearest farmhouse to telephone to Dyersville in an attempt to stop the east bound train but it was too late. The train struck and demolished the automobile.

On the night in question the crossing by defendant's track over the old road was still in place about 70 feet west of the point where plaintiff's car was struck. And approximately the north half of the old road between the Illinois Central track and defendant's track, leading to the old crossing, was still in existence. However, the new grade was four to six feet higher than the old road at this halfway point. To get from the new road to the old one at this place plaintiff would have had to turn left (west) and descend this rather abrupt slope of four feet or more. Plaintiff testifies, 'You would drop about five or six feet when you drove onto that.' The new fill covered about the south half of the old road between the two railroads.

There is much evidence that on the night of the collision it was hard to see the old road leading off to the left from the new grade. Defendant's track foreman frankly admits he could not see this 'turn-off' with the lights of the jeep in which he rode on the new grade soon after the accident. Plaintiff believed the new road was completed and did not know anything was left of the old one nor that there was a turn-off onto it. He did not see it.

There is testimony that a mound of dirt one to two feet high was left on the south side of defendant's track for about half the width of the new roadway. But there is substantial evidence this mound had been moved before the night of September 16. There is also testimony that a sign about two feet square with the words 'Road closed' was in place where Prier's Road meets Highway 20. However, plaintiff and his wife testify there was no sign nor other warning at this point or elsewhere along the new road. It conclusively appears there was no sign, warning or barricade along the new grade north of U.S. 20.

Down to 1951 plaintiff had lived on the farm his brother later occupied and was familiar with the old road but he had never seen the new road before nor had he been in this vicinity since the construction work commenced. He did, however, know some change in the old road was planned.

In considering the errors assigned we will make further reference to the facts.

I. There is no merit to defendant's contention plaintiff was contributorily negligent as a matter of law. Defendant argues plaintiff was negligent in maintaining a lookout because he did not sooner discover there were no planks in place where the new road crossed the track and that the crossing and the new road north of it were not finished. It is also argued plaintiff was driving at such speed he was unable to stop within the assured clear distance ahead.

There is a good deal of evidence plaintiff was in the exercise of ordinary care as he approached what he believed was a railroad crossing on this new road. He was driving 15 to 20 miles an hour until he tried to stop just before his car slid onto the track. He and his wife were watching the road and, as was his duty, he looked to the left and right, upon approaching the track, to see if a train was coming. It cannot be said as a matter of law he was negligent in not seeing the turn-off onto the old road of which he had no knowledge. Other witnesses, including an employee of defendant, who visited the scene that night also failed to see it. The new road appeared to continue on across defendant's track. Plaintiff and his wife thought it did. The night was dark and rainy.

Of course the issue of freedom from contributory negligence is ordinarily one of fact for the jury. Mueller v. Roben, 248 Iowa ----, 82 N.W.2d 98, 100-101, and citations; Aitchison v. Reter, supra, 245 Iowa 1005, 1007, 64 N.W.2d 923, 924; Leinen v. Boettger, 241 Iowa 910, 926, 44 N.W.2d 73, 82, and citations. We are cited to no precedent on facts at all comparable to those here which holds there was contributory negligence as a matter of law.

These decisions support our conclusion the issue of freedom from contributory negligence was for the jury: Louisville & N. R. Co. v. Anderson, 5 Cir., 39 F.2d 403, 405; Black v. Southern Pacific Co., 124 Cal.App. 321, 12 P.2d 981, 985; Mercier v. Naugatuck Fuel Co., 139 Conn. 521, 95 A.2d 263, 265; City of Fort Worth v. Lee, Tex.Civ.App., 182 S.W.2d 831, 838-839; Id., 143 Tex. 551, 186 S.W.2d 954, 959, 159 A.L.R. 125, 132-133.

II. Defendant's second contention is it was entitled to a directed verdict because it says it owed plaintiff no duty to erect barricades or warning signs near the alleged crossing. As stated, principal argument in support of this contention is that plaintiff was a trespasser upon its track and it therefore owed him no duty except to exercise ordinary care to avoid injury to his car after discovering it. As plaintiff concedes, if he was a trespasser upon the track, defendant owed him no duty to erect barriers or warning signs for his protection. Plaintiff maintains, however, he went upon the track by implied invitation of defendant.

Generally a motorist who enters upon a railroad right of way at a place other than a public crossing is regarded as a trespasser to whom the railroad owes no duty of due care prior to discovering his presence upon the right of way. Annotation, 44 A.L.R.2d 680, 682. But under the circumstances here we think defendant was not entitled to a directed verdict on the ground plaintiff was a trespasser upon defendant's right of way.

The new crossing where plaintiff's automobile was struck and the grade leading thereto appeared to be, and plaintiff believed...

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