LaNgham v. Chi., R. I. & P. Ry. Co.

• Decision Date: 06 May 1924
• Docket Number: No. 35839.,35839.
• Citation: 197 Iowa 1118,198 N.W. 525
• Court: Iowa Supreme Court
• Parties: LANGHAM v. CHICAGO, R. I. & P. RY. CO.

197 Iowa 1118

198 N.W. 525

LANGHAM

v.CHICAGO, R. I. & P. RY. CO.

No. 35839.

Supreme Court of Iowa.

May 6, 1924.

Appeal from District Court, Benton County; James W. Willett, Judge.

Action to recover damages in the sum of $1,000 alleged to have resulted from a collision between an automobile owned and driven by plaintiff and a passenger train of defendant at a public crossing in the city of Vinton, Iowa. Trial to a jury, with verdict in favor of plaintiff for $750. From the judgment entered thereon defendant appeals. Reversed.J. G. Gamble and A. B. Howland, both of Des Moines, and G. W. Burnham, of Vinton, for appellant.

Tobin, Tobin & Tobin, of Vinton, for appellee.

DE GRAFF, J.

Plaintiff seeks to recover property damage resulting from a collision of his automobile with defendant's passenger train. The accident occurred January 19, 1921, at a public crossing in Vinton, Iowa. Plaintiff was proceeding south across the tracks with his car. The train was east bound. There are six sets of railway tracks at this particular crossing, of which three are to the north and three to the south of a space occupied by buildings belonging to the defendant company. Plaintiff was struck by a train on the first track immediately to the south of these buildings.

It was about dusk, and the lights were burning on plaintiff's car. When he approached the tracks he slowed down and shifted to low gear. He stopped his car before driving onto the first track, and opened the curtained door of the car in order to have a greater opportunity to hear and see. He looked in both directions, and listened for whistle and engine bell. He heard neither. He then proceeded and stopped again about 50 feet from the track on which the collision happened, and did so for the purpose of determining whether a train was approaching. To his west the buildings and railway cars then on the track interfered with his vision. With his side door still open he started forward slowly and proceeded to the next track still looking to the east and west for trains. When about 20 feet from the third track he looked west, and at that time could see up the track west from the crossing 4 or 5 feet beyond the corner of the building, which was 56 feet west of the crossing. He was driving about 8 or 10 miles an hour. When from 3 to 5 feet from the fourth track, and when about to cross, he again looked west, and saw the moving train coming from the west about 20 feet away. He jumped through the open door of his car, and almost immediately the train hit the car, throwing it about 25 feet from the point of contact. There is no question that the car was badly damaged.

The jury could find from the evidence that the train was traveling in excess of the ordinance speed of 6 miles per hour. The testimony of the witnesses varies from 15 to 30 miles per hour. No engine bell was ringing, and the train was making no noise. It is admitted that no whistle was blown. The specifications of negligence on the part of the defendant submitted to the jury include (1) the operation of the train at an excessive and unlawful rate of speed at a crossing where the view of the approach to the crossing was obstructed by buildings, sheds, and freight cars; (2) the failure to have some proper and dependable signal or device to warn and protect the traveling public; (3) the failure to give warning by engine bell as required by law of the approach of the train; (4) the operation of the train at a public crossing at a rate of speed in violation of a city ordinance.

Defendant's answer put in issue these allegations of negligence, alleged that the accident was proximately caused or contributed to by plaintiff's negligence, and admitted that no whistle was sounded by the train by reason of the prohibition contained in an ordinance of the city of Vinton. The motion to direct on behalf of the defendant stresses the negligence of the plaintiff. Was the plaintiff guilty of contributory negligence as a matter of law? Putting the question in another form, Did the plaintiff act under the circumstances as a person of ordinary care and prudence should have acted under the same or similar circumstances? Prior decisions on this troublesome question afford but weak precedents. Seldom do we find a similarity of facts. Plaintiff was in duty bound to exercise ordinary care, as the term is legally understood, to discover the approach of a train. It is undisputed that he not only looked and listened but he stopped his car twice before crossing the tracks. He realized he was in a danger zone. These were diverting circumstances which must be considered in determining the question of contributory negligence. One naturally asks what further precautions should the plaintiff have taken? What did he do or omit to do that tends to establish the charge of contributory negligence? What act of omission or commission appears? He not only looked and listened but stopped. It is argued by appellant that, since the crossing had an automatic bell which was ringing, the failure of plaintiff to appreciate and respect that danger signal constitutes negligence on his part. Plaintiff heard the bell. He testified that “it kept ringing right up to the time of the accident.” Unless the plaintiff was in duty bound to refrain from attempting to cross the tracks while the warning signal was sounding, it may not be said that he is guilty of contributory negligence as a matter of law under the circumstances of this case. The tracks were in themselves a warning of danger. The automatic bell was installed, not simply to warn a traveler that he was approaching railroad tracks, but primarily to warn him of the danger of an approaching train. Although the automatic signal did not function in the same manner as crossing gates or a flagman, yet the bell constituted a warning that a train was approaching. The evidence discloses that the warning gong sounded when a train was on the main line only, and it was not necessarily a movingtrain. In other words, a train could approach this crossing on any of the other tracks and the bell did not ring. Whether the plaintiff was guilty of contributory negligence must be determined by the character of the notice which the automatic bell gave him at the time in question. He testified that there was nothing in the ringing of the signal bell that notified him or gave him any knowledge that “it was only rung when a train was on one track.” He assumed, therefore, that the bell was rung by the passing of a train on any of the six tracks. Was he justified in this assumption? He had observed a freight train to the east of the crossing, and he thought this train was moving to the east. The caboose was not over a block away. He made this observation after he had crossed the second track, and, in speaking of the...