Mast v. Illinois Cent. R. Co.

• Citation: 79 F. Supp. 149
• Decision Date: 09 August 1948
• Docket Number: Civil Action No. 410.
• Parties: MAST v. ILLINOIS CENT. R. CO.
• Court: United States District Courts. 8th Circuit. Northern District of Iowa

79 F. Supp. 149

MAST v. ILLINOIS CENT. R. CO.

Civil Action No. 410.

District Court, N. D. Iowa, E. D.

August 9, 1948.

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Burton E. Sweet and Oliver J. Reeve, both of Waverly, Iowa, for plaintiff.

Frank H. Helsell, of Fort Dodge, Iowa, and Leo J. Cohrt, of Waterloo, Iowa, for defendant.

GRAVEN, District Judge.

Motion for a new trial following a directed verdict for the defendant in a railroad crossing collision case involving the no eyewitness rule, last clear chance doctrine, and related matters.

On June 28, 1945, at a railroad crossing in the open country north of Cedar Falls, Iowa, at approximately 11:30 A.M., a collision occurred between a truck owned and operated by Harry E. Mast and a train operated by the defendant, Illinois Central Railroad Company. Harry E. Mast died as the result of the injuries sustained in the collision. The plaintiff, Ruth Mast, widow of the decedent and executrix of his estate, brought this action under Sections 611.20 and 611.22, Code of Iowa 1946, providing for the bringing of actions by a representative of a deceased person. Clarence Mast and Wayne Mast, two minor sons of the decedent who were riding in the truck at the time of the collision, were injured as a result thereof, and brought separate actions to recover damages for such injuries. Their actions and the present action were consolidated for purposes of trial. At the conclusion of the entire case, the Court sustained the motion of the defendant for a directed verdict as to the claim of Harry E. Mast. The claims of the minor sons were submitted to the jury. The jury was unable to agree upon a verdict, being equally divided for and against their claims. Those actions are presently awaiting retrial. Subsequent to the directed verdict the plaintiff filed a motion for a new trial. This opinion has to do with that motion.

The site of the collision was about five and one-half miles north of Cedar Falls, Iowa, where a secondary country road intersected the railroad line of the defendant. The country road ran east and west and the railroad line ran in a general northwesterly-southeasterly direction at the crossing. The country road was of gravel and had the standard sixty-six foot right of way. The railroad line was of single track and had the standard one hundred foot right of way. The crossing was surfaced with crushed rock at that time, having little or no grade in the approaches thereto upon the road, and was in good condition. The terrain surrounding the crossing was also substantially level and there were no curves in either the road or the railroad line sufficiently close to the crossing to be of importance. A cross-arm warning signal was in position at the east side of the crossing at the side of the road. What is known as a whistling post stood approximately one thousand feet north of the crossing near the defendant's tracks. The day in question was a still, warm summer day.

The farm home of the decedent, Harry E. Mast, and his family was situated immediately north of the road at the crossing and immediately adjacent to the east line of the railroad right of way, his western and southern property lines bordering respectively on the railroad and country road rights of way. Harry E. Mast had lived at that farm home for fourteen years prior to the collision and was manifestly familiar with the crossing and the conditions existing at the crossing. The evidence showed that Harry E. Mast had been making use of a portion of the easterly half of the right of way for one of his driveways. That driveway came out into the railroad right of way from the west side of his grove and continued on the east side of the railroad right of way to the crossing. Another driveway was located on the easterly side of the decedent's front yard which opened onto the country road in question. An engineer's plat introduced in evidence shows that from the center of the latter driveway at the point where it entered the country road to the center of the crossing where the collision occurred is approximately one hundred seventy-five feet.

On the forenoon in question, immediately preceding the collision, the evidence shows that Harry E. Mast left his farmstead by way of the driveway one hundred seventy-five feet from the crossing driving his 1940 Ford truck. The rear of the truck had been fitted with a lime box and spreader. There was a closed cab on the truck. In the doors on each side of the cab there were full width view windows extending for some distance down from the top. In the rear of the cab there was a rear view window extending across the greater portion of the cab. According to the testimony of Ruth Mast, it was the intention of the said Harry E. Mast to secure a load of gravel from a pit situated in a field west of his farm and across the track. Riding upon the truck in the lime box were his two minor sons, Clarence, at that time twelve years of age, and Wayne, at that time nine years of age. After entering the country road, Harry E. Mast turned his truck to the west and proceeded in that direction towards the crossing in question. He approached the crossing at the same time that a train of the defendant was nearing the crossing from the north. The train was a so-called "extra train," consisting only of an engine and caboose. The evidence shows that the engine was of a type known as the Improved Mikado, having an overall height of fifteen feet, nine inches. The evidence tended to show that the truck driven by Mast hit the steam chest cover near the front of the engine. The truck was thrown by the impact to the south of the road and east of the track. The train crew stopped the train, returned to the crossing, and, after a conference with Mrs. Ruth Mast who had run to the scene of the collision from the house, took Harry E. Mast to a more southerly junction where an ambulance which had been called met the train and took him to a hospital in Cedar Falls, Iowa. He died the next morning. Clarence and Wayne Mast received injuries from which they both made fairly prompt and satisfactory recovery, except as to probable continued nervousness on the part of Wayne Mast.

Upon the Mast farmstead, between the farm buildings and the west property line, was a grove of trees which commenced some distance to the southwest of the farm house. The first tree of the grove was situated in the yard approximately sixty-five feet north of the road and was close to the railroad right of way fence. Approximately ninety feet north of the road, near or on the easterly line of the railroad right of way, there was situated a fairly large tree. A large branch of that tree extended into the right of way approximately eleven or twelve feet. The wires of the fence separating the farm of Harry E. Mast and the right of way ran on the west side of the tree. Shortly beyond this tree to the north near the easterly right of way line was a clump of berry bushes and beyond that was a clump of plum brush. Witnesses called by the plaintiff estimated the height of the bushes and brush to be from six to sixteen feet.

The plaintiff, Ruth Mast, testified that she was familiar with the conditions existing at the crossing at the time of the collision. According to her description, extending north along the track for a distance of four hundred to five hundred feet, there were weeds from five to seven feet tall at the time of the collision. A brother of Harry E. Mast, called as a witness by the plaintiff, testified that, starting about fifteen feet north of the north line of the country road and extending north along the track, there were weeds from five to eight feet high. Two other witnesses called by the plaintiff testified that the weeds in question were up to six feet in height. Another witness called by the plaintiff testified that the weeds in question were from three to four feet in height. Another witness called by the plaintiff testified that the weeds in question were about three feet in height. Witnesses called by the plaintiff testified that, running along each side of the track to the north of the crossing, there was a mound or ridge of earth from three to five feet in height and that such mound or ridge was about seven feet east of the track. The driveway of Harry E. Mast on the railroad right of way, heretofore referred to, was about midway between the tracks and the east line of the railroad right of way. The mound or ridge referred to was between that driveway and the tracks. Witnesses called by the plaintiff testified that it was the presence of the weeds on that mound or ridge which gave rise to serious view obstruction in so far as weeds were concerned. It is the claim of the plaintiff that following the collision there was considerable trampling of the weeds in question. Numerous witnesses called by the plaintiff testified as to the extent to which the visibility of the railroad track to the north of the crossing was diminished because of the obstructions heretofore described. The plaintiff, Ruth Mast, testified that she traveled back and forth across the crossing in question several times a week at or around the time of the collision. She testified that at a point on the road one hundred fifty feet east of the crossing the view to the north was totally obstructed; that at a point one hundred feet east of the crossing one could see up the tracks to the north from thirty to forty feet; and that at a distance of twenty feet from the crossing one could see up the tracks to the north from seventy to seventy-five feet. A brother of the decedent who was presented as a witness for the plaintiff testified that at a point on the road about one hundred sixty-five feet east of the crossing a view could be had up the tracks to a point about ten feet north of the north right of way line of the highway; that at a point twenty-five feet from the east rail of the crossing one could see up the...