Mann v. Des Moines Ry. Co.

• Decision Date: 15 December 1942
• Docket Number: 46107.
• Parties: MANN v. DES MOINES RY. CO.
• Court: Iowa Supreme Court

7 N.W.2d 45

232 Iowa 1049

MANN v. DES MOINES RY. CO.

No. 46107.

Supreme Court of Iowa

December 15, 1942

Appeal from District Court, Polk County; O. S. Franklin Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Dale S. Missildine, R. H. Work, and Jerome Smith, all of Des Moines, for appellant.

Volney Diltz, of Des Moines, for appellee.

BLISS Justice.

The collision occurred within the city of Des Moines, shortly after one o'clock in the morning of Christmas Day, 1940. The rough drawing below will aid in describing how and where the collision took place:

RPT.CC.1943105126.00010

(Image Omitted)

The railway track shown is a part of the Douglas Avenue car line, which extends north and south along the east boundary line of Grand View Park. It is a public city park with roads and drives therein for the use of the public. The defendant owns the right of way on which its track is laid, north from Easton Boulevard which extends northeasterly along the southerly side of the park. This right of way abuts on the east side of the park. A part of one of the park roads is shown within the curved outlines just to the west of the railway track, and extending to and across the track. This is the eastern exit of the park. This road across the track merges into Sheridan Avenue at and immediately west of the street railway track. In other words, the road over and across the right of way at this place connects the park road with Sheridan Avenue. Commencing almost at the south end of the crossing, the railway track runs south through a deep cut for a distance of 330 feet. For substantially this entire distance, the top of each bank of the cut is as high or higher than the top of a street car. The banks taper down just as they come within a short distance of the south end of the crossing. Inside the park and along the bank next to it just south of the crossing are a considerable number of trees which interfere with a view toward or from the track. A few feet north of the crossing and immediately east of the track and on the right of way, is a rectangular wooden sign erected on a post, with these words on the signboard: "Look Out for the Cars. Railroad Crossing." This sign is indicated by the figure "3" on the drawing. On the west side of the track and just north of the park road at the crossing, and directly west of the signboard just described, is another rectangular signboard, about three feet long and two and one-half feet wide or high, set on top of a post about six or seven feet above the ground and about half way down the three foot embankment of the track. On this signboard are these printed words in substantially this form:

"Warning

"Dangerous Crossing

"Not sanctioned by Des Moines Railway Company.

"Drivers use it at their own risk."

The letters in the second line are about six inches high. The word "Warning" is printed in somewhat smaller letters. The last two sentences are printed in much smaller letters. This sign is marked on the drawing by the figure "2." Just north of this signboard and west of the track is a small building used as a "waiting shelter" by those patronizing the street railway. It is built upon a slightly raised earth platform. It is marked on the drawing by the figure "1."

At the crossing, between the rails and on each side of them for some distance, earth, gravel, cinders or other substance has been filled in to make a smooth, level passage way over the track and right of way. The rails are four feet and eight and one-half inches apart. The crossing at the track is about ten feet wide north and south. The surface of the crossing is about thirty inches higher than the level of the park road immediately to the west. The approach to the track up this incline is somewhat abrupt. At the southeast corner of the crossing intersection on a bracket arm extending from a pole on the right of way, from which another bracket arm carrying the trolley wire extends, is an electric street light. On the drawing the pole is marked by the figure "5."

Prior to 1937 or 1938 this crossing had been used by the public, and then the defendant erected a barricade blocking the passage way east of the crossing. In 1937 or 1938 a number of the residents east of the track in this neighborhood requested the defendant to remove the barricade. This request was granted. The civil engineer who has charge of matters with respect to maintenance of right of way and crossings for defendant testified that the right of way on which the track is laid east of the park is the private right of way of the defendant, and that there is no platted street across the track at that crossing. He testified:

"The crossing was closed up for a period of time. It was opened at the request of the people that live at the east side of the track and on the east side of the road, which parallels the right of way on the east. After it was opened I had some signs placed there. The same wording has been on the signs ever since they were placed there. * * *

"My best recollection is that the road was reopened in 1937 or 1938. There were several people there who wanted the road opened. We opened it up to satisfy at least a part of the public in that neighborhood. Des Moines Railway Company owned the fee to the little piece of ground over which the crossing is located. There is a park road there that runs in the form of a loop or circle that touches the right of way at this crossing. One prong from that loop takes it over the crossing. The sign was placed there as a warning, and I would say that we did not sanction the crossing. To reopen the road we took some rails down that had been planted on the east side of the track to form a barricade. We responded to the demand of various members of the public by taking down the barricade and installing the sign. As I remember I had the sign painted. It was the intent to open the crossing up and let the public use it without regard to what I had in mind by the use of the word 'sanction'. I caused the words, "Dangerous Crossing,' to be put on the sign. That was because from my knowledge as an engineer and maintenance man I considered, and still consider it, a dangerous crossing. In forming that belief I was influenced by the surrounding characteristics, such as the grade and blind stops, and that was the reason for the warning sign. * * * There has never been any illuminations over the signboard, and the paint is not luminous. * * *

"The Railway Company has never dedicated the crossing to the public as a highway. It has never been conveyed to the City."

The plaintiff, an automobile mechanic, 36 years old, some time after ten o'clock on Christmas Eve, went to "Sampson's Chicken Shack" at 1246 East 17th Street. He was there for about two hours and drank two or three bottles of beer while there. The place closed about 1:00 a. m. As he was leaving with the crowd, a married lady friend called to him and asked if he had his car, and if he would take her home. His car was a 1937 Chevrolet sedan. The lady sat in the front seat with him. There were no other occupants of the car. He drove in to Grand View Park from Easton Boulevard. The broken line "ab" indicates the path of his automobile as he approached the crossing. He was not familiar with the road and did not know it led over the railway track. He testified that it was somewhat foggy with a little snow on the ground. Another witness testified that the location is low and at that time of night there is often a mist. The day had been pleasant with a mean temperature of 44 degrees. The automobile was traveling southeasterly at a speed of about 20 miles per hour, which he slackened to about 15 miles per hour as he turned to the left or east. He observed the rather abrupt grade as he turned east, about 25 feet from the top of the grade, and shifted into second gear and proceeded at a speed of seven or eight miles per hour. While the drawing, which is a tracing of part of an exhibit, is not drawn to an exact scale, it approximates one inch to twenty feet. From the figure "4" on the west boundary of the park road due east to the west rail of the track the distance is approximately 45 feet. The plaintiff testified that he did not know he was approaching a railway track, and did not see the signs, nor hear any warning gong or bell, nor see the street car until he got on the track. He then saw it approaching about 50 or 60 feet away, from the south, or his right, at a speed which he estimated to be about 40 miles per hour. He could not get the automobile out of the way, and it was hit squarely on its right side and pushed north, sideways on the track for a distance, which witnesses, by estimate and by measurement, place at from 70 to 153 feet. After the street car was stopped, the automobile was found wrapped about the front of the street car. The plaintiff was lying partly under the left side of the automobile, and the lady was under the steering wheel. Both were bleeding and unconscious. The street car was backed away to permit plaintiff to be taken from under the automobile. The police were called and plaintiff and the lady were taken to the hospital. She had a fractured skull. Plaintiff did not regain consciousness until January 1st, and was in the hospital until the middle of February. The jury returned a verdict for $2,000.

The appellant assigns eight errors based on fifteen or more grounds of its motions, to direct a verdict, and, for a new trial. However, these assignments and grounds are, in fact, all based upon a few propositions.

I. Appellant contends that the appellee was either a trespasser, or, a bare licensee, upon its property at the time of the collision, to whom, in either event, the limit of its duty was to use reasonable and ordinary care...