MacKrall v. Omaha & St. L. R. Co.

• Decision Date: 22 May 1900
• Citation: 82 N.W. 975,111 Iowa 547
• Court: Iowa Supreme Court
• Parties: MACKRALL v. OMAHA & ST. L. R. CO.

111 Iowa 547

82 N.W. 975

MACKRALL

v.OMAHA & ST. L. R. CO.

Supreme Court of Iowa.

May 22, 1900.

Appeal from district court, Fremont county; Walter L. Smith, Judge.

Action for damages caused by a crossing collision. The defendant appeals from judgment on a verdict against it. Affirmed.J. G. Trimble and G. B. Jennings, for appellant.

W. P. Ferguson, for appellee.

LADD, J.

The plaintiff, in approaching a crossing from the west, stopped his team, looked, and listened, when 100 feet from the railway, without observing or hearing the train. He then sat down on the north side of the hayrack with his feet in the box below, his back to the north, and his face towards the team, and slowly drove down a descent to the track. From there to within 14 feet from the center of the track was an embankment, which obstructed his view up to at least 20 feet from such center. His attention was drawn to the gullies recently washed in the road, though given somewhat to the railroad. Just as the team was going on the rails, he noticed the train coming from the north, only a few feet distant, and he was thrown in the air to the embankment. As the engine was moving at the rate of 35 miles an hour, there was no possibility of escape after its discovery, and the evidence tended to show that he saw it at the first opportunity. The appellant contends that this record conclusively establishes contributory negligence. Not so because of sitting down, as possibly this may have been a matter of precaution for the management of his team in going down grade, and to avoid the ruts and side ditches. Nor can it be stated as a matter of law that he should have stopped again to look and listen. In Winey v. Railway Co., 92 Iowa, 622, 61 N. W. 218, it was said: “The rule, no doubt, is that if the traveler, having looked and listened without seeing or hearing an approaching train within a reasonable distance of the crossing, is, by reason of a neglect of the railroad company to blow the statutory whistle, run upon, and injured, liability attaches.” See, also, Harper v. Barnard, 99 Iowa, 159, 68 N. W. 599;Moore v. Railroad Co., 102 Iowa, 600, 71 N. W. 569. The authorities cited by appellant are not in point. In some of them, as in Schneider v. Railway Co. (Wis.) 75 N. W. 169, the injured party stopped where his vision was obstructed, and failed to look at a point where he could see. In others, if he had looked, the situation was such as that he must have seen, as in Bloomfield v. Railway Co., 74 Iowa, 608, 38 N. W. 431. Under the circumstances disclosed, it was for the jury to say whether the plaintiff stopped within a reasonable distance from the track, or was bound, in the exercise of ordinary care, to do so again within the 100 feet.

2. The engineer and fireman declared there were two long and two short blasts of the whistle at the whistling post, and from there to the crossing the bell was rung. The conductor and two passengers claim to have heard the whistle, and also three section men, who were working 40 rods below the crossing. On the other hand, the plaintiff testified that...