Kinney v. Larsen, 47204.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGARFIELD
Citation31 N.W.2d 635,239 Iowa 494
PartiesKINNEY v. LARSEN et al.
Docket NumberNo. 47204.,47204.
Decision Date06 April 1948

239 Iowa 494
31 N.W.2d 635

LARSEN et al.

No. 47204.

Supreme Court of Iowa.

April 6, 1948.

Appeal from District Court, Woodbury County; George W. Pritchard, Judge.

Law action to recover for injuries sustained in a crossing collision between plaintiff's automobile and defendants' train. From verdict and judgment for plaintiff defendants have appealed.

Reversed and remanded.

Sifford, Wadden & Jepson, of Sioux City, and Miller, Davis, Hise & Howland, of Des Moines, for appellants.

Crary, Munger & Crary and George G. Yeaman, all of Sioux City, for appellee.

[31 N.W.2d 636]

GARFIELD, Justice.

The principal question we find it necessary to determine is whether plaintiff was quilty of contributory negligence as a matter of law.

The collision occurred at a country crossing 1 3/4 miles north of the town of Sloan at 11:30 a.m. on July 24, 1944. Plaintiff, age 67, is a farmer who for 17 years had lived 1 1/4 miles west of the crossing and was thoroughly familiar with it. He was returning to his home from Sloan on paved U. S. highway 75 which parallels the railroad, in a northwest-southeast direction, at a distance of about 72 feet. Plaintiff turned west off the pavement onto the side road that passes his home and traveled about 82 feet to the crossing when the front of his automobile was struck by a northbound passenger train.

This action against the railroad and the engineer on the train is bottomed on their negligence in failing to sound a whistle and ring a bell as required by section 478.19, Code, 1946, and of course, upon plaintiff's freedom from contributory negligence. There is substantial evidence of defendants' failure to give the statutory warning signals.

One ground of defendants' motion for directed verdict at the close of the evidence is that plaintiff's contributory negligence affirmatively appears. This motion was overruled and the jury returned a verdict for plaintiff of $3750 against the railroad and one dollar against the engineer. Defendants then moved for judgment notwithstanding verdict on the grounds asserted in their motion to direct, as provided by rule 243. (All references to rules are to Rules of Civil Procedure.) This motion was also denied and from judgment on the verdict defendants have appealed.

I. At the outset plaintiff contends that because defendants requested two special interrogatories bearing on the issue of contributory negligence (see rule 206) which the court submitted to the jury, defendants are estopped to assert such issue was not for the jury but was one of law for the court. The contention is without merit.

Before they requested these interrogatories defendants' motion for directed verdict had been made and overruled. It was their duty to bow to that ruling. Defendants' request for interrogatories was not a waiver of their right to assign as error upon this appeal the overruling of the motion to direct. This is the spirit and effect of rule 331(b).

The request for interrogatories could have no other or greater effect than defendants' request for instructions to the jury. Neither request was a waiver of their right to urge error in overruling their motion for directed verdict. If defendants had made no motion to direct, the situation would be different and the authorities cited by plaintiff would be applicable. The matter is settled by Heavilin v. Wendell, 214 Iowa 844, 849, 241 N.W. 654, 83 A.L.R. 872, and citations.

II. Of course plaintiff is entitled to have the evidence on the question of contributory negligence considered in the light most favorable to him.

From Sloan north to the place of collision both U. S. highway 75 and the railroad are substantially straight. Sloan may be seen from the crossing in question. The railroad track is about 5 1/2 feet higher than the surface of the paving. The approach to the crossing from the east is thus upgrade. The country in the vicinity is comparatively flat. Since the railroad and highway 75 run northwest-southeast and the side road which crosses the track lies due east and west, the angle between the side road, as it approaches the railroad from the east, and the track to the south is about 60 degrees.

Plaintiff says he slowed down to 8 or 10 miles an hour and shifted gears to make the turn off the paved highway. When he turned he looked south, first for cars following him, and, just after he left the pavement, for a train. In avoiding a rough place in the dirt side road plaintiff got a little too far north onto the grass. When he straightened up his car he looked south a second time. He was then about 47 feet east of the east rail. He could see south along the track a little beyond the whistling post and says he saw no train. The petition

[31 N.W.2d 637]

alleges and the answer admits this post is about one-fourth mile (1320 feet) south of the crossing. A civil engineer employed by the railroad says the distance measures 1347 feet.

Plaintiff's car was moving in second gear approximately 4 or 5 miles per hour. His brakes were in good condition. Plaintiff did not look to the south again until his car was within 5 or 6 feet of the east rail. He then ‘heard the train and looked up and it was right on me.’ He applied his brakes and threw his car in reverse but could not get the front of the car off the track in time to avoid the collision. The train was 20 minutes late and was traveling 60 miles per hour at least until it was within about 100 feet of the crossing. Plaintiff knew the time the train was due, he thought it had gone but had not heard it go.

There was nothing to divert plaintiff's attention. It is true he looked to the north, as was his duty, as well as to the south and also to the east and west on the side road. Plaintiff also says, ‘I heard something which sounded like a truck north of me and it could have been a plane or something else, but I didn't get it located.’ That this was not such a diverting circumstance as relieved plaintiff of the duty of looking for trains see Yanaway v. Chicago, R. I. & P. R. Co., 195 Iowa 86, 90, 190 N.W. 21;Ballard v. Chicago, R. I. & P. R. Co., 193 Iowa 672, 677, 185 N.W. 993.

Except for two lines of telegraph poles between the railroad and highway 75 there was nothing to obstruct plaintiff's view. Plaintiff admits the grass did not prevent his seeing the track. There were no trees, shrubs, buildings, boxcars or other obstructions to view. Plaintiff admits nothing interfered with his view when he...

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