Markle v. Chi., R. I. & P. Ry. Co.

• Decision Date: 11 December 1934
• Docket Number: No. 42497.,42497.
• Citation: 219 Iowa 301,257 N.W. 771
• Court: Iowa Supreme Court
• Parties: MARKLE v. CHICAGO, R. I. & P. RY. CO.

219 Iowa 301

257 N.W. 771

MARKLE

v.CHICAGO, R. I. & P. RY. CO.

No. 42497.

Supreme Court of Iowa.

Dec. 11, 1934.

Appeal from District Court, Floyd County; M. F. Edwards, Judge.

This is an action to recover damages on account of decedent's death from injuries sustained through being struck by one of defendant's trains, while driving a truck over its tracks at a crossing. The case was tried to a jury resulting in a verdict and judgment in favor of plaintiff. Defendant appeals.

Affirmed.J. G. Gamble and R. L. Read, both of Des Moines, and Ernest Hausberg, of Charles City, for appellant.

W. G. Henke and R. W. Zastrow, both of Charles City, for appellee.

KINTZINGER, Justice.

The collision occurred on August 16, 1932, while decedent was engaged in hauling gravel from a pit to certain highway projects in Floyd county. The record shows that the crossing where the accident happened is located about a half mile north of the gravel pit. The decedent, with a number of others, had been hauling gravel from the pit and over the crossing in question for about three weeks prior to the accident and was familiar with the character of the crossing at the place of the collision. Prior to the day on which decedent was struck, his employer had maintained a flagman at the crossing for the purpose of warning gravel haulers of the trains passing along the track. This flagman was not on duty on the day of the accident. The first trip decedent made that day was in the afternoon. He was killed on this trip.

The highway in question runs north and south and is intersected by defendant's track running at an angle in a northwesterly and southeasterly direction. There were cuts along the railroad's right of way northwesterly of the crossing, one of these cuts being about 800 feet northwest of the crossing, extending about 300 feet southeasterly towards the crossing. The elevation of the track, 2,700 feet northwest of the crossing, is over 9 feet below the grade at the crossing with cuts between that point and the crossing. At that time the southerly side of the railroad right of way and the tops of the cuts were covered with trees, shrubs, and weeds so that the view of the railroad track and trains approaching thereon from the northwest was obscured from the view of travelers approaching the crossing from the south, until within 10 feet of the track. One of the witnesses testified that: “The view is obstructed by a knoll and the weeds growing on top of it. You had to get almost to the railroad before you could see as far as 300 feet northwest of the crossing. Until you got within six or eight feet from the south rail you could not see more than ten or fifteen feet to the northwest.” The roadway south of the track on which the decedent was approaching the crossing was sandy, with an upgrade towards the track.

The evidence shows that before Markle reached the track he stopped his truck, put his left foot out on the running board, and leaned his head out of the cab and looked both ways. One witness testified that when he stopped he was 20 or 40 feet from the track. Another witness testified that he “saw Markle's truck stop, saw him put his left foot out on the running board, and stick his head out of the cab. According to my observation he stopped between ten and 15 feet of the track. Then he got back in the cab and started on, slowly. He got about half-way on the track when the train hit his truck.” After the decedent started his truck he was traveling about two miles per hour towards the track. Several witnesses testified that there was no whistle, bell, or other warning sounded before the train hit the truck, and that no such warnings were sounded until after the collision.

Such is the substance of the evidence. At the conclusion thereof the defendant moved for a directed verdict upon the ground of decedent's contributory negligence. The motion was overruled and the case submitted to the jury with the resultant verdict. Hence the appeal.

[1][2] It is conceded by appellant that there was sufficient evidence in the record to warrant the submission of this case to the jury upon the question of defendant's negligence. It is contended, however, that the lower court erred in submitting the case on the question of contributory negligence. Appellant contends that decedent, under the facts, was guilty of contributory negligence, as a matter of law. In a discussion on this question the evidence must be considered in that light most favorable to plaintiff. We have not yet adopted the rule in this state that a traveler is guilty of contributory negligence, as a matter of law, if he is struck on a crossing by a train, regardless of the facts under which the collision occurred. Love v. Ft. Dodge, D. M. & S. R. Co., 207 Iowa, 1278, 224 N. W. 815;Laverenz v. C., R. I. & P. R. Co., 56 Iowa, 689, 10 N. W. 268;Artz v. Chicago, R. I. & P. R. Co., 34 Iowa, 153;Selensky v. Chicago, G. W. R. Co., 120 Iowa, 113, 94 N. W. 272;Bush v. Chicago, R. I. & P. R. Co., 216 Iowa, 788, 247 N. W. 647;Nederhiser v. Chicago, R. I. & P. R. Co., 202 Iowa, 285, 208 N. W. 856;Glanville v. Chicago, R. I. & P. R. Co., 196 Iowa, 456, 193 N. W. 548.

Upon this question in Love v. Ft. Dodge, D. M. & S. R. Co., 207 Iowa, 1278, loc. cit. 1282, 224 N. W. 815, 818, we said: “Embraced within this question is not the problem of determining with whom the preponderance of evidence may be; rather the situationpresents 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. * * * Obviously, it cannot be said, as a matter of law, the effect of appellee's actions in the premises is so conclusive of his contributory negligence that the same is ‘apparent to every fair-minded and reasonable man so but one conclusion may be fairly drawn therefrom.”’

In Artz v. Chicago, R. I. & P. R. Co., 34 Iowa, 153, loc. cit. 161 we said: “But, if the view of the railroad, as the crossing is approached upon the highway, is obstructed by any means, so as to render it impossible or difficult to learn of the approach of a train, or there are complicating circumstances calculated to deceive or throw a person off his guard, then, whether it was negligence on the part of plaintiff or the person injured, under the particular circumstances of the case, is a question of fact for the jury.”

In Selensky v. Chicago, G. W. R. Co., 120 Iowa, 113, loc. cit. 117, 94 N. W. 272, 273, we said: “In view of the partial obstruction of the track, raising a doubt as to whether plaintiff could or could not, in the exercise of reasonable care, have seen the approaching train, and whether she was exercising reasonable care in driving along the highway towards the crossing in the expectation of hearing the crossing signal if the train should be near, it was not error to submit the question of the plaintiff's contributory negligence to the jury.” (Italics ours.)

In Bush v. Chicago, R. I. & P. R. Co., 216 Iowa, 788, 247 N. W. 645, loc. cit. 647, we said: “With the record showing that appellee's view was obstructed by the box cars on the siding so that it rendered it difficult or almost impossible to learn of the approaching train, the question of contributory negligence is one of fact and not of law.”

[3][4][5] This case calls for the application of the “reasonably prudent person” rule. Under that rule the decedent was under obligation to look and listen for approaching trains within a reasonable distance of the crossing but was not required to look at any particular distance therefrom. If under the evidence in this case the jury could find that the decedent stopped his truck within a reasonable distance from the track for the purpose of looking and listening, then he was not guilty of contributory negligence and the question was properly submitted to the jury.

It is impossible, as a matter of law, to say at what precise distance from a railroad track a traveler must stop to look and listen. This must be done within a reasonable distance from the track.

We cannot say, as a matter of law, that he should have driven his truck on an uphill, sandy road and stop it at a point exactly 5 or 6 feet from the track. Winey v. Chicago, M. & St. P. R. Co., 92 Iowa, 622, 61 N. W. 218;Nederhiser v. Chicago, R. I. & P. R. Co., 202 Iowa, 285, 208 N. W. 856;Davitt v. Chicago G. W. R. Co., 164 Iowa, 216, 145 N. W. 483;Mitchell v. Union Terminal R. Co., 122 Iowa, 237, 97 N. W. 1112;Glanville v. Chicago, R. I. & P. R. Co., 196 Iowa, 456, 193 N. W. 548;Willfong v. Omaha & St. L. R. Co., 116 Iowa, 548, 90 N. W. 358;Schulte v. Chicago, M. & St. P. Ry. Co., 114 Iowa, 89, 86 N. W. 63;Brossard v. Chicago, M. & St. P. R. Co., 167 Iowa, 703, 149 N. W. 915;Barrett v. Chicago, M. & St. P. R. Co., 190 Iowa, 509, 175 N. W. 950, 180 N. W. 670;Bush v. Chicago, R. I. & P. R. Co., 216 Iowa, 788, 247 N....