Langham v. Chi., R. I. & P. Ry. Co.
| Decision Date | 06 April 1926 |
| Docket Number | No. 37195.,37195. |
| Citation | 208 N.W. 356,201 Iowa 897 |
| Court | Iowa Supreme Court |
| Parties | LANGHAM v. CHICAGO, R. I. & P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Benton County; James W. Willett, Judge.
Action for damages to the automobile of plaintiff caused by a collision between it and one of the trains of defendant. Plaintiff recovered a verdict for $1,000, and defendant appeals. Reversed.J. G. Gamble and R. N. Lynch, both of Des Moines, for appellant.
Tobin, Tobin & Tobin, of Vinton, for appellee.
This is the second appeal in this case. The former opinion appears in 198 N. W. 525, 197 Iowa, 1118. Only a partial statement of the record is necessary so far as the questions involved in the appeal are concerned.
Eighth avenue in the city of Vinton runs north and south. Appellant's tracks, six in number, cross Eighth avenue. To the west of Eighth avenue, and between tracks 3 and 4, is a freighthouse of appellant. This freighthouse stands 68 feet west of the center of Eighth avenue. About five blocks west of Eighth avenue, between tracks 3 and 4, is the passenger station of appellant.
On the day in controversy appellee was driving south on Eighth avenue. He crossed tracks 1, 2, and 3, and the accident occurred on track 4, where his car was struck by appellant's passenger train coming from the west.
One of the claims made by appellee is that each of the three tracks to the west of Eighth avenue had box cars standing thereon which obstructed his view to the west, and for that reason he could not see the passenger train as and after it left the station. While it is admitted that there were cars on track 1, the north track, the company claims that there were no box cars on tracks 2 and 3, and that, had appellee looked, after he passed track 1, he could have seen the approaching train, and thus avoided the accident. We have numbered these tracks Nos. 1 to 6, beginning with the north track.
[1] Appellant tendered a witness, one Stewart, who saw the accident. Stewart says that immediately thereafter he walked to a point about the center of track 3 and the center of Eighth avenue, and that from where he stood looking west he could see the main line, track 4, from the passenger station to the west end of the freighthouse. The court refused to admit the testimony thus proffered. It appears to us that this was very material testimony for the appellant, and should have been admitted. If what the witness said was true, it tended to squarely negative the contention of appellee that the view to the west was obstructed by cars on track 3, the place where the witness stood. It also tends to negative the testimony of appellee himself that he stopped his car on track 3 and looked to the west, but could not see the approaching train because his view was obstructed by cars on that track. State v. Nowells, 109 N. W. 1016, 135 Iowa, 53;Lawrence v. Sioux City, 154 N. W. 494, 172 Iowa, 320;Burg v. C., R. I. & P. Ry. Co., 57 N. W. 680, 90 Iowa, 106, 48 Am. St. Rep. 419;Snakenberg v. Minneapolis & St. L. R. Co., 188 N. W. 935, 194 Iowa, 215;Houston & T. C. R. Co. v. Ramsey, 97 S. W. 1067, 43 Tex. Civ. App. 603;Vandalia R. Co. v. Duling, 109 N. E. 70, 60 Ind. App. 332.
[2][3][4] The appellant requested several instructions stating in different forms the doctrine of what it designated as a physical fact rule, the substance of which is that, if, in approaching this track, the appellee's view of the approaching train was unobstructed, he is held by the law to have seen the train, and was therefore guilty of contributory negligence. The court refused all of the instructions asked by appellant on this subject, and did not cover it in the instructions given. True, it was a disputed question whether or not the appellee's view was obstructed; then, of course, this doctrine would apply. In our judgment it should have been given. Appellee meets this proposition by contending that this rule has no application where there are diverting circumstances, and cites Glanville v. Chicago, R. I. & P. R. Co., 193 N. W. 548, 196 Iowa, 456, and High v. Waterloo, C. F. & No. R. Co., 190 N. W. 331, 195 Iowa, 304. Neither of these citations decide the question of a diverting cause or circumstance; but, be that as it may, the evidence of appellee himself shows the following condition: When he drove on to track 3, which is 60 feet north of track 4, the main line track where the accident occurred, he stopped his car, and, looking to the east, he saw a freight train about 300 feet from the crossing where the accident occurred. This train was standing still. He says he noticed it, but gave no further attention to it. Under these circumstances the standing freight train cannot be said or considered to be a diverting cause or circumstance. Guhl v. Whitcomb, 85 N. W. 142, 109 Wis. 69, 83 Am. St. Rep. 889. We are satisfied under the record that appellant was entitled to an instruction calling for an application of the physical fact rule.
[5][6] In a colloquy between the court and counsel during the trial, the...
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