Kuper v. Chicago and North Western Transp. Co.

• Citation: 290 N.W.2d 903
• Decision Date: 23 April 1980
• Docket Number: No. 62776,62776
• Parties: Mabel KUPER, Administratrix of the Estate of Kenneth Lee Kuper, Deceased; Russell Kuper; and Kroblin Refrigerated Express, an Iowa Corporation, Appellees, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 903

290 N.W.2d 903

Mabel KUPER, Administratrix of the Estate of Kenneth Lee Kuper, Deceased; Russell Kuper; and Kroblin Refrigerated Express, an Iowa Corporation, Appellees, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Appellant.

No. 62776.

Supreme Court of Iowa.

April 23, 1980.

Rehearing Denied May 16, 1980.

B. A. Webster and Bruce E. Johnson of Gamble, Riepe, Burt, Webster & Davis, Des Moines, for appellant.

Nick Critelli of Critelli & Foxhoven, Des Moines, for appellees.

Considered by REYNOLDSON, C. J., and LeGRAND, REES, UHLENHOPP, and McGIVERIN, JJ.

LeGRAND, Justice.

This appeal arises out of an accident which occurred on March 19, 1976, when a semitrailer struck a standing train of the Chicago and North Western Transportation Company. The accident caused the death of Kenneth Lee Kuper, and the principal plaintiff is the administrator of his estate.

At the time of the accident, the decedent was driving a rig partially owned by Russell Kuper and partially owned by Kroblin Refrigerated Express. Jury verdicts were returned for the decedent's estate for $150,000.00; for Russell Kuper in the sum of $16,500.00; and for Kroblin Refrigerated Express in the amount of $27,943.59. Judgment was subsequently entered on these verdicts and North Western appeals. We reverse and remand for a new trial.

The following errors are urged as grounds for reversal:

1) Permitting the jury to decide if the railroad crossing was extra hazardous so as to require warnings other than those prescribed by statute.

2) Error in instruction on extra hazardous crossing.

3) Refusal to hold decedent guilty of contributory negligence as a matter of law.

4) Errors in ruling on evidence.

5) Submitting issue of punitive damages to the jury.

6) Allowing interest from the date of the accident rather than the date of the judgments.

7) Allowing improper and prejudicial final argument to the jury.

We postpone a detailed description of the facts until discussing the specific questions to which they relate. We recite now only a few background circumstances to afford a better understanding of the issues involved.

The accident occurred at the 112th Street crossing in Polk County. The crossing sits in what was described by several witnesses as a depression or valley. The decedent was coming from the south on 112th Street, a blacktop county road. After coming over a slight rise, the approach is straight and level for at least 1,000 ft. before reaching the tracks.

The train consisted of seventy-eight cars. It was almost a mile long. Approximately a quarter of a mile east of 112th Street, the engineer faced a stop-and-go signal. This is an electrical signal which directs an engineer to stop and then proceed cautiously. When the train was brought to a stop, the twenty-fourth car was blocking the crossing. Estimates of the length of time the train had been stopped prior to the accident varied, but it was quite short in any event. The force of the impact derailed the car, destroyed both the tractor and trailer, and caused fatal injuries to Kenneth Lee Kuper. There were no witnesses.

I. Extra Hazardous Nature of Crossing.

The most hotly contested issue throughout this entire case was whether the 112th Street crossing is so dangerous or extra hazardous that North Western should have given warnings in addition to those prescribed by section 327G.2, The Code 1977.

The evidence shows there was a round yellow sign displaying a large "X" together with the letters "RR" located approximately 800 ft. from the crossing. There was also a large "X" with the letters "RR" painted on the surface of the road approximately 325 ft. from the tracks. It is not contended that these did not satisfy the statutory provision as to warning but it is argued instead that the crossing was extra hazardous and that it demanded warnings or signals in addition to these.

The statute involved is section 327G.2, The Code, which we here set out:

Crossings signs. Every corporation constructing or operating a railway shall make and construct at all points where such railway crosses any public road good, sufficient, and safe crossings and erect at such points, at a sufficient elevation from such roads as to admit (a) free passage of vehicles of every kind, 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. Any railway company neglecting or refusing to comply with the provisions of this section shall be liable for all damages sustained by reason of such refusal or neglect, and it shall only be necessary, in order to recover, for the injured party to prove such neglect or refusal.

Under our cases this statute sets up minimum standards only. Although a railroad company is not required to install additional signalling devices at every crossing, it must do so whenever a crossing is deemed extra hazardous. Whether it is extra hazardous is a jury question unless the evidence is so strong that reasonable minds could reach but one conclusion. It then became a question of law for the court. Gant v. Chicago & North Western Railway Company, 434 F.2d 1255, 1258 (8th Cir. 1970); Maier v. Illinois Central Railroad Company, 234 N.W.2d 388, 391 (Iowa 1975); Wickman v. Illinois Central Railroad Company, 253 Iowa 912, 917, 114 N.W.2d 627, 630 (1962); Plumb v. Minneapolis & St. Louis Railway Company, 249 Iowa 1187, 1196, 91 N.W.2d 380, 386 (1958); Russell v. Chicago, Rock Island & Pacific Railroad Company, 249 Iowa 664, 668, 86 N.W.2d 843, 845-46 (1957); Strom v. Des Moines & Central Iowa Railway Company, 248 Iowa 1052, 1068-69, 82 N.W.2d 781, 790-91 (1957); Lindquist v. Des Moines Union Railway Company, 239 Iowa 356, 360, 30 N.W.2d 120, 122 (1947); Glanville v. Chicago, Rock Island, & Pacific Railway Company, 190 Iowa 174, 181, 180 N.W. 152, 155 (1920); see also Wiedenfeld v. Chicago & North Western Transportation Company, 252 N.W.2d 691, 700 (Iowa 1977).

We have said that precedents in these cases are of little value and that each case must be decided on a consideration of all the surrounding circumstances applied to conditions existing at the time of the accident. Strom, 248 Iowa at 1062, 82 N.W.2d at 787.

The question facing us now is whether the record discloses substantial evidence upon which the jury, as reasonable persons, could find the 112th Street crossing to be extra hazardous. The question is close, and we view the evidence in the light most favorable to plaintiff. We cannot say there is no reasonable basis for holding as the trial court did. Hence we conclude it was not error to submit this issue to the jury.

We mention parenthetically that the Sixty-Seventh General Assembly in 1977, ch. 103, section 2, amended section 307.26, The Code, to fix statutory guidelines for identifying dangerous railroad crossings. This amendment now appears in section 307.26(5)(b), The Code 1979. It provides among other things that a "railroad crossing shall not be found to be particularly hazardous for any purpose unless the department (of Transportation) has determined it to be particularly hazardous." That amendment, however, was enacted subsequent to this accident. When the events here in question occurred, the North Western had an independent duty to determine which crossings were extra hazardous and to take proper steps for the safety of those using the highways. Symmonds v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company, 242 N.W.2d 262, 265-66 (Iowa 1976).

We have already given a brief outline of the facts. We supplement that now by a more detailed recitation of the evidence relating to this issue.

On the night of the accident, the weather was clear, the road was dry, and driving conditions were good. There is no artificial light at the crossing. There was little natural light. Five witnesses for plaintiff described this crossing as extremely dangerous. They used such terms as "killer crossing" and "pit of darkness" in supporting their opinions. As early as 1972, Sister Mary Elizabeth Gannon, one of plaintiff's witnesses, wrote the president of North Western about the dangerous nature of several crossings, including this one. The company sent an investigator to survey the crossing in company with Sister Mary Elizabeth Gannon. However, nothing was done at this time.

She testified she used this road frequently, and that it was impossible to see a train stopped at the crossing. She also testified it was impossible to see a train to the east or right as one approached from the south because of a dike formed by dirt from a drainage ditch.

A highway patrolman, Mike Metzger, testified he gave notice to North Western about the dangerous nature of this crossing in 1975. He also met with a representative of the railroad. Again, no action was taken. Metzger testified concerning his familiarity with the railroad crossings in Polk County. He testified he had never "seen one as bad as this for nighttime visibility." He said this was "because of the surroundings, the dug out ditch or bank, whatever you want to call it, on the east side of the road."

Another witness, Kenneth McCammant, who is a truck driver, testified as follows:

Q. Mr. McCammant, have you had a chance to drive this highway at this crossing from the south going north at night under the same conditions that you've indicated before.

A. Yes, sir.

Q. Can you tell us a little bit or describe the visibility at this crossing if there is a train on that track?

A. You come down off of that (incline) and you cannot see the train.

Q. Okay. Do you know why?

A. I've had occasion to drive it a lot of times. I've hauled seed corn up through there and had to make many trips up through there in the early morning and night, and I don't know it is just like when you go down in there it is just like you're going down in a pit. I don't know. It is there is just don't seem like there is any light down there or...