Lingle v. Minneapolis & St. L. Ry. Co.

• Decision Date: 02 August 1960
• Docket Number: No. 50014,50014
• Parties: Louella LINGLE, Administratrix of the Estate of Cloyd C. Lingle, Deceased, Appellant, v. MINNEAPOLIS AND ST. LOUIS RAILWAY COMPANY, a Corporation, and Harry E. Ramler, Appellees.
• Court: Iowa Supreme Court

Page 467

104 N.W.2d 467

251 Iowa 1183

Louella LINGLE, Administratrix of the Estate of Cloyd C. Lingle, Deceased, Appellant, v. MINNEAPOLIS AND ST. LOUIS RAILWAY COMPANY, a Corporation, and Harry E. Ramler, Appellees.

No. 50014.

Supreme Court of Iowa.

Aug. 2, 1960.

Leonard & Branco, Holstein, Rider, Bastian & Beisser, and Alan Loth, Fort Dodge, for appellant.

Lundy, Butler & Wilson, Eldora, for appellees.

GARFIELD, Justice.

This is a law action against defendant railway and the engineer of a 2-car passenger train to recover for death of plaintiff's decedent when his cattle truck collided with the side of the train at a country grade crossing in daylight. Trial resulted in jury verdict against the railway but in favor of the engineer. The trial court sustained the railway's motion for judgment in its favor notwithstanding the verdict. From judgment on the ruling plaintiff has appealed.

Plaintiff concedes she presented no evidence of her decedent's freedom from contributory negligence but contends she had the benefit of the no eyewitness rule. The trial court held the rule was not applicable because, as he thought, defendant-engineer was an eyewitness to the conduct of the driver of the truck during the material moments just before the collision and also the rule was negatived by the facts and circumstances in evidence. Upon these two grounds the jury verdict was set aside.

Plaintiff's decedent and his employee Bochmann were in the truck when it collided with the train at its crossing of paved Highway 175, 4861 feet south of the railway station at Gowrie. Both were killed. The truck, a tractor-trailer loaded with cattle bound for Chicago, was going east, the train south. It consisted of an engine and one coach with combined length of about 163 feet. The truck collided with the side of the train near its center at the front of the coach which was damaged and derailed. There is no direct evidence as to whether plaintiff's decedent, Lingle, or his employee, Bochmann, was driving the truck. Such inferences as may be drawn from the testimony point to Lingle as driver.

On the west side of the railroad track--the side from which the truck approached--there is an embankment about 1,600 feet long extending north from a point about 135 feet north of the highway. At this point the embankment is 2.9 feet above the top of the rails. At 200 feet north of the highway this highth is 6.7 feet and at 250 feet 9.7 feet. Highest point of the embankment is 350 feet north of Highway 175. It is there 13.7 feet higher than the highway at the crossing. The engine was 15 feet, 8 inches, and the coach 13 feet, 7 inches high. The highway is about level. It is apparent the higher part of the embankment obstructs the view an eastbound motorist has of such a coach and all except the top part of such an engine while in the deeper part of the cut.

Of course upon this appeal we must view the evidence in the light most favorable to plaintiff. Beezley v. Kleinholtz, 251 Iowa ----, 100 N.W.2d 105, 107.

Defendant engineer Ramler testifies he first saw the truck when he was about 1,800 to 2,000 feet north of the crossing; the truck was then about three-fourths mile west of the crossing; the train was traveling 'about 20 and 25 miles an hour' (it was however 2 1/2 hours behind schedule); after his first view of the truck the embankment prevented his seeing it again until he was 223 feet north of the crossing; the truck was then 595 feet west of the crossing; it was coming right along, about the usual speed a truck would be traveling; he did not see any attempt to stop the truck; he could not see who was driving it. He estimates the speed of the truck at about 50 miles per hour and says he did not see it slow down. Also that he sounded the whistle and rang the bell as he approached the crossing. The engineer testifies:

'Q. Where did you first realize there was going to be a collision? A. I didn't realize there was going to be any collision. I thought I was over the crossing and safe.

'Q. Did you think the truck was going to pass behind you? A. No.

'Q. Did you think it was going to stop? A. Yes. * * *

'Q. Why did you think you were safe, that no collision was going to occur, after you had crossed Highway 175? A. You would naturally think a vehicle coming toward the side of a train would stop.

'Q. Didn't you see the truck immediately prior to the accident * * * didn't you keep your eye on it? A. No, after I got on the highway I looked straight at the truck and I never looked at it any more. It was back 150 feet or such a matter.

'Q. The truck was west of your engine 150 feet when your engine was on the highway crossing? A. Yes.'

Thus the engineer says he did not see the truck while it traveled the last 150 feet.

I. The no eyewitness rule is that where there is no eyewitness and no obtainable direct evidence as to what a decedent did or failed to do by way of precaution at and immediately before the time he was injured there is an inference he was in the exercise of ordinary care for his own safety. Riedesel v. Koch, 241 Iowa 1313, 1316-1317, 45 N.W.2d 225, 228, and citations; Smith v. Darling & Co., 244 Iowa 133, 140, 56 N.W.2d 47, 51, and citations; Ruble v. Carr, 244 Iowa 990, 995, 59 N.W.2d 228, 231-232.

If the witness who attempts to describe decedent's actions did not see him during all the material moments preceding the injury he is not such an eyewitness as to deprive decedent's estate of the benefit of the inference of care above referred to. Hittle v. Jones, 217 Iowa 598, 601, 250 N.W. 689, 691, and citations; Hayes v. Stunkard, 233 Iowa 582, 589, 10 N.W.2d 19, 22; Graby v. Danner, 236 Iowa 700, 707, 18 N.W.2d 595, 598; Hamilton v. Becker, 249 Iowa 516, 519, 86 N.W.2d 142, 144; Van Wie v. United States, D.C.N.D.Iowa, 77 F.Supp. 22, 41 (Judge Graven).

The trial court instructed the jury with reference to the no eyewitness rule and left to its determination the question whether there was an eyewitness to decedent's conduct during the material moments just before the collision. The instruction is in accord with a number of our precedents provided of course the evidence warranted a finding there was no such eyewitnesses. Hamilton v. Becker, Hackman v. Beckwith, 245 Iowa 791, 64 N.W.2d 275 and Riedesel v. Koch, all supra; Low v. Ford Hopkins Co., 231 Iowa 251, 253-254, 1 N.W.2d 95, 97; Platter v. Minneapolis & St. L. R. Co., 162 Iowa 142, 157, 143 N.W. 992.

As before indicated, the court later ruled the engineer was, as a matter of law, an eyewitness to decedent's conduct during the material moments and also that the no eyewitness rule was negatived by the facts and circumstances. It was the court's view that the time when the occupants of the truck were not under observation--the last 150 feet of travel--did not constitute material moments because the collision could not then be avoided.

We have never attempted to say just what is meant by 'material moments preceding an injury' as applied to all cases and do not do so now. It is doubtless true, as Judge Graven observes in Van Wie v. United States, supra, N.D.Iowa, 77 F.Supp. 22, 42, that what are such material moments varies with the conditions and circumstances of a particular case. We are reluctant to hold that the moments during which this truck traveled the last 150 feet before striking the train were not, as a matter of law, material moments. If the engineer or other witness testified to decedent's conduct during these final moments certainly no one could seriously contend they were not material. They are no less material merely because the evidence is silent as to this interval. However, as we shall attempt to explain, it is not of controlling importance whether the last 150 feet of travel were so-called material moments.

We do hold there is no inference that, due to the instinct of self-preservation, decedent exercised ordinary care for his own safety during the time the engineer observed the truck and its occupants travel between points from 595 feet to 150 feet, respectively, west of the crossing. Decedent's conduct during this period must be judged from the evidence, not by considering an inference that might have arisen from a lack of obtainable direct evidence as to these moments.

Mast v. Illinois Central R. Co., D.C.N.D.Iowa, 79 F.Supp. 149, 162 (Judge Graven), affirmed, 8 Cir., 176 F.2d 157, cites many Iowa decisions for the proposition that the inference arising from the no eyewitness rule does not apply to moments covered by direct evidence. See Gray v. Chicago, R. I. & P. R. Co., 160 Iowa 1, 15, 139 N.W. 934; Bussler v. Chicago, M. & St. P. R. Co., 165 Iowa 361, 366, 145 N.W. 533; Merchants' Transfer & Storage Co. v. Chicago, R. I. & P. R. Co., 170 Iowa 378, 394-396, 150 N.W. 720.

II. We have referred to the lack of direct evidence as to whether plaintiff's decedent or his employee Bochmann was driving the truck. We may as well say at this point we think it is unimportant which of them was the driver. The only reasonable conclusion from the evidence is that if it was Bochmann he was acting within the scope of his employment and, we may add, that decedent had the right to control the operation of the truck. Any negligence of Bochmann in driving the truck would therefore be imputed to his employer. Restatement Agency, Second, section 317, see comment a, illustration 1; 5A Am.Jur., Automobiles and Highway Traffic, section 818; 65 C.J.S. Negligence § 168 i, page 831. See also Stuart v. Pilgrim, 247 Iowa 709, 713, 74 N.W.2d 212, 215; Cubbage v. Roos, 181 S.Car. 188, 186 S.E. 794, 798.

III. The vital question on this appeal is whether plaintiff was entitled to go to the jury on the issue of freedom of her decedent from contributory negligence. As a rule the inference of due care arising from application of the no eyewitness rule is sufficient...