Love v. Fort Dodge, Des Moines & Southern R. Co.
| Decision Date | 02 April 1929 |
| Docket Number | 39348 |
| Citation | 224 N.W. 815,207 Iowa 1278 |
| Parties | JACK LOVE, Appellee, v. FORT DODGE, DES MOINES & SOUTHERN RAILROAD COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.
This was an action by the plaintiff against the defendant to recover for personal injuries and property damages due to a collision between a freight car and an automobile. A verdict for plaintiff was returned by the jury, and the defendant appeals.
Affirmed.
Dyer Jordan & Dyer and Davis, McLaughlin & Hise, for appellant.
Miller Kelly, Shuttleworth & McManus, for appellee.
On June 20, 1927, at about 10 o'clock in the morning, the plaintiff-appellee was injured, and the one-seated Chevrolet automobile in which he was riding was damaged, because of an impact between the motor vehicle and two moving freight cars operated by the defendant appellant. These cars were in motion for the purpose of completing a flying-switch manipulation.
There are involved in this review questions concerning the defendant's negligence, plaintiff's contributory negligence, the court's instructions relating to plaintiff's care, and failure of the jury to follow the court's charge to it. Preliminary to a discussion of those subjects, a statement of the facts will aid in the application of the law adaptable to the propositions aforesaid.
East Eighteenth Street runs north and south in Des Moines, connecting the city proper on the north with an industrial district on the south. That public way is interested by East Court Avenue, which extends in an east and west direction. Certain railroad tracks run over East Eighteenth Street a short distance south of the point where East Court Avenue crosses it. At the time of the accident, appellee, a man 37 years of age, drove his automobile, as before explained, south over East Eighteenth Street toward the railroad tracks. His destination was the packing house in the industrial district. Several different railway tracks were to be crossed by appellee in the course of his journey. Commencing at the north, they were: First, a switch (called a dead track); second, a track known in the record as "B" (also understood to be a dead track); third, another group of tracks several feet south, designated in the evidence in the order of their location as "2," "1," and "main,"--"2" being the farthest north, and "main" at the extreme south (measured along the west curb of East Eighteenth Street, the distance from the north rail of Track No. 2 to Track B, supra, is 27 feet); fourth, two tracks to the south some distance, controlled by the Chicago Great Western Railway Company; and fifth, a track still farther to the south, owned by the Chicago, Rock Island & Pacific Railway Company. Those companies, the Chicago, Rock Island & Pacific, Great Western, and appellant, jointly maintained a flagman for this triple crossing. It was the duty of this watchman to warn travelers upon East Eighteenth Street concerning danger on any or all of the said tracks. This employee had a "shelter hut or house," located on the right of way between the Great Western and Rock Island tracks. According to the record, trains moved over some of these tracks about every five minutes during the day.
As appellee approached those tracks from the north, he says, there were very thick weeds, five or six feet high, along the west side of East Eighteenth Street, extending south as far as "B" on the dead track. He states this prevented his seeing westward until he reached Track B. Furthermore, appellee said, there is an unfinished building, known as The Old Tire Company, on the west side of Eighteenth Street, as one approaches the railway tracks, going southward. Of that building, the first story has been erected, and in addition thereto, there are high pillars. Thus, when plaintiff was traveling south, on the day in question, toward these railway tracks, he saw the flagman, with his "stop signal" raised. An east-bound train was then on either the Rock Island or the Great Western track. Appellee slowed down his car, and watched the flagman. Then, as the train proceeded out of the city, the flagman lowered his sign, and walked in a southwesterly direction toward his "shelter hut." Therefore, the appellee assumed the way was clear, and started across the dead tracks at the rate of about six or eight miles an hour. When Track B was crossed, appellee looked westward, and saw no train or cars approaching. So then he looked to the east, and observed nothing in that direction. Immediately thereafter, he again glanced to the west, and discovered the two flat cars coming across the street at the rate of 15 or 20 miles per hour. The appellee, at that moment, was only a few feet away from Track 2, on which the cars were running, south of Track B, after a flying switch. A brakeman of appellant's at this moment called to appellee. In order to avoid a collision, appellee turned his automobile to the east, but he could not miss the flat cars, and they pushed him about 30 feet. No bell or whistle or other signal was given, so far as appellee observed.
Such is the story as told by appellee; but, of course, appellant introduced evidence to refute and contradict those statements and allegations. Upon this record, the trial court told the jury that, in order for the appellee to recover, it was necessary for him to establish, by a preponderance of the evidence, one or more of the following propositions: First, that appellant negligently switched two loose flat cars from the west to the east over and across said street crossing, without control or ability to stop the same in order to avoid an accident; second, that appellant failed to ring a locomotive bell, post a lookout, or give any warning whatsoever of the approach of said fast-traveling and uncontrolled cars; third, that the flagman at said crossing failed to give appellee any warning of the on-coming cars.
For an answer to those charges of negligence, the appellant interposed a general denial and a plea that the damages sustained by appellee, if any, were due to his own contributory negligence. Moreover, appellant alleged its negligence was in no way the proximate cause of appellee's loss or damage.
I. Appellant contends the district court erred in instructing the jury that the act of making a flying switch is negligence per se. After carefully reading the instructions, however, it is apparent such is not what said tribunal did. Contrary to doing that, the court submitted the "flying-switch" issue as one of fact, and not of law. Under certain facts and circumstances, a "flying switch" does constitute negligence. Williams v. Northern Pac. R. Co., 63 Wash. 57 (114 P. 888); Lacey v. Louisville & N. R. Co., 81 C.C.A. 352 (152 F. 134 [5th Cir.]); Cincinnati, N. O. & T. P. R. Co. v. Ackerman, 148 Ky. 435 (146 S.W. 1113); Vaden v. North Carolina R. Co., 150 N.C. 700 (64 S.E. 762); Johnson v. Seaboard Air Line R. Co., 163 N.C. 431 (79 S.E. 690); Nilson v. Chicago, B. & Q. R. Co., 84 Neb. 595 (121 N.W. 1128). See Watson v. Wabash, St. L. & P. R. Co., 66 Iowa 164, 23 N.W. 380.
II. Likewise, complaint is made by appellant that the failure to keep a lookout at the crossing intersection was not, under the circumstances, negligence. Manifestly, the trial court did not tell the jury the appellant at this instance was required, as a matter of law, to have such lookout because, perchance, there was at that place a railway crossing. What was said in the charge attacked related to due care in making a flying switch, under the issues. Negligence was alleged by appellee because the appellant thus ran its cars across a public street in the absence of a lookout who could warn the travelers thereon about the danger. Wherefore, the jury must have understood the instruction regarding the lookout as confined to the matter of the flying switch. To put the thought in another way, what the court really said was that the fact-finding body could consider the absence of a lookout and other lack of warning on the question of appellant's due care in making such switch. It is true, there was a trainman near who finally called to appellee; but, under the record, this was not done until the collision was imminent. A jury question, therefore, arose as to whether a proper lookout was at all times present during the switching manipulations. More definite instructions on this subject were not asked by appellant. Hence, there is no reversible error on this phase of the controversy.
III. Many of appellant's assignments are based upon the thought that appellee was guilty of contributory negligence as a matter of law. Embraced within this question is not the problem of determining with whom the preponderance of evidence may be; rather, the situation presents the necessity of judicially saying that, under the record, the jury could find no evidence upon which a verdict could be based. If the appellee's own testimony is sufficient in this regard, it must be submitted to the fact-finding body; for a review of this nature contemplates that appellee's evidence shall be considered in the light most favorable to him. Consequently, when thus weighed, the record here clearly presented a jury question on appellee's alleged contributory negligence.
While approaching the railway crossing, appellee, according to his assertions, was driving slowly, with his car under control. He could not see westward, because of the high weeds and the partly finished building, until he reached the south rail of Track B. From the latter position, however appellee could see the defendant's tracks for a long distance, both to the east and the west. His conduct...
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Love v. Ft. Dodge, D. M. & S. R. Co.
... ... Affirmed.[224 N.W. 817]Dyer, Jordan & Dyer, of Boone, and Davis, McLaughlin & Hise, of Des Moines, for appellant.Miller, Kelly, Shuttleworth & McManus, of Des Moines, for appellee.KINDIG, J.On June ... ...