Jensvold v. Chicago Great Western R. Co.

• Decision Date: 14 December 1943
• Docket Number: 46361.
• Citation: 12 N.W.2d 293,234 Iowa 627
• Parties: JENSVOLD v. CHICAGO GREAT WESTERN R. CO.
• Court: Iowa Supreme Court

12 N.W.2d 293

234 Iowa 627

JENSVOLD v. CHICAGO GREAT WESTERN R. CO.

No. 46361.

Supreme Court of Iowa

December 14, 1943

Rehearing Denied March 10, 1944.

William J. Kennedy, of New Hampton, and Edward D Kelly, of Emmetsburg, for appellant.

E P. Donohue, of New Hampton, and Carr, Cox, Evans & Riley and Hubert C. Jones, all of Des Moines, for appellee.

OLIVER Justice.

This action was brought by the administrator of the estate of Alice Knutson against Chicago, Great Western Railroad Company for her wrongful death. The railroad line of said company runs north and south through New Hampton. In the north part of said town, Milwaukee Street, which runs east and west crosses said railroad at grade. East of the tracks, Milwaukee Street is below the level of the railroad to which the street slopes upward at the crossing. A high embankment of another railroad, which parallels Milwaukee Street on the north, obstructs the view to the north of one travelling west on Milwaukee Street, toward appellee's tracks until he nears the top of the slope at the grade crossing. Fifty feet east of the crossing, the street is about five feet lower than the embankment to the north, fifty feet farther east is about eight feet, and 150 feet farther east about eleven feet lower than said embankment.

About 8:30 in the evening of January 30, 1941, an automobile, in which Mrs. Alice Knutson was riding as a passenger to New Hampton from her home a few miles east of that town, was struck by appellee's south bound passenger train at the Milwaukee Street crossing. Mrs. Knutson and the driver, the only occupants of the car, were killed. Mrs. Knutson did not know how to drive an automobile.

Barney Stolphus testified he heard the brakes of the train and noticed it stopped at an unusual point; that he and Elmo Ingels went over to it; that the engineer was walking around the engine with a torch; that the witness saw false teeth, eye glasses and a hat upon the pilot and said, "You must have killed somebody", and the engineer said, "I thought we hit somebody"; that the witness and Ingels ran back up the track north and found the two bodies on the east side of the track, about 220 feet south of the Milwaukee Street crossing; that they were the first to discover the bodies; that later the members of the train crew came back and the conductor said he had to make a report; that the witness remained at the scene about 2 hours; that he knew of no one who had seen the collision; that "There was nobody that seen it; nobody at all."

Elmo Ingels testified to the same effect concerning what occurred at the engine, the discovery of the bodies, and that he found no one who witnessed the accident.

The deputy sheriff arrived at the train shortly after the accident, went north to where the bodies lay and found Stolphus and Ingels there. He made an investigation and found no one who claimed to have seen the collision.

Stolphus also testified the train stopped a little over four blocks, or about 1,300 feet, south of the Milwaukee Street crossing; that he observed the automobile, and that "it was struck near the right front door the way it looked."

Defendant's accident report to Iowa State Commerce Commission, introduced without objection, states in part: "Passenger train ***, south bound at speed of 40 miles per hour, struck 1938 Ford Sedan moving westward about 20 miles per hour on gravel street in residential district."

An ordinance made it unlawful to operate a railway train in New Hampton at more than 10 miles per hour.

At the conclusion of the evidence for plaintiff, defendant moved for a directed verdict upon the grounds of failure to prove decedent's freedom from contributory negligence and failure to prove defendant's negligence, or that its alleged negligence was the proximate cause of the accident. The court sustained the motion generally, judgment was rendered against plaintiff and he has appealed.

I. The question of Mrs. Knutson's contributory negligence will be first considered. It appears no eye witness observed her conduct just prior to the time of the collision. Under such circumstances the law indulges the inference that the instinct of self preservation was such as to induce her to exercise ordinary care for her own safety.

Appellee argues that the written report of the Railroad Company, which states the automobile was moving about 20 miles per hour, indicates it was observed by someone. However, one who observed the speed of the automobile would not necessarily be an eye witness within the meaning of the rule. He must be one who can say, from his observation, what the deceased did or failed to do in the observance of due care for her own safety. Davidson v. Vast, Iowa, 10 N.W.2d 12; Hayes v. Stunkard, Iowa, 10 N.W.2d 19; Barrett v. Chicago, M. & St. P. Railway Co., 190 Iowa 509, 175 N.W. 950, 180 N.W. 670.

In open court counsel for appellee stated a person (apparently one of the train crew) saw the accident and counsel then proffered said person to appellant as a witness. We know of no precedent for such procedure. It was without legal effect. Assuming such person was credible, appellee should have made him its witness, at the proper time.

As to whether there was negligence on the part of the driver of the automobile which contributed to the collision, we express no opinion. The record shows...