McDowell v. Chicago, Milwaukee, St. Paul & Pac. R. Co., 74-1231

• Decision Date: 13 December 1974
• Docket Number: No. 74-1231,74-1231
• Citation: 507 F.2d 5
• Parties: Edith L. McDOWELL, Executor of the Estate of Clarence A. McDowell, Deceased, Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 5

507 F.2d 5

Edith L. McDOWELL, Executor of the Estate of Clarence A.

McDowell, Deceased, Appellant, v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Appellee.

No. 74-1231.

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 13, 1974.

Decided Dec. 13, 1974.

Robert E. Dreher, Des Moines, Iowa, for appellant.

Randy Duncan, Des Moines, Iowa, for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and MEREDITH, ¹ Chief District Judge.

VAN OOSTERHOUT, Senior Circuit Judge.

Plaintiff Edith L. McDowell, executor of the estate of her husband, Clarence A. McDowell, has taken this timely appeal from final judgment dismissing her complaint for damages for wrongful death of Mr. McDowell and from denial of her motion for a new trial.

The collision between McDowell's truck and the defendant's train, which resulted in McDowell's death, occurred on the Main Street crossing of defendant's tracks at Dawson, Iowa, about 7:30 a.m. on June 30, 1970. Defendant's track runs east and west; Main Street runs north and south. The train was traveling east and the decedent was traveling south on Main Street as he approached the railroad crossing. Plaintiff alleges that her husband's death was proximately caused by the negligence of the railroad in failing to give timely warning of the approach of its passenger train by sounding a whistle or ringing a bell; by operating the train at an excessive speed; by permitting its automatic signal to operate frequently when no trains were approaching; in failing to keep weeds, bushes and trees trimmed so as not to obstruct the view of approaching trains; and by failing to keep a flagman posted at the crossing. Additionally, plaintiff claimed a right to recover under the last clear chance doctrine.

Defendant denied negligence and asserted decedent was guilty of contributory negligence as a matter of law which proximately caused his death.

Jurisdiction based on diversity of citizenship and the jurisdictional amount is established.

This case was tried to a jury. Defendant moved for a directed verdict at the close of plaintiff's case and again at the close of all the evidence. Included therein was the ground that plaintiff's decedent was guilty of contributory negligence proximately causing his injury and death by reason of the crossing being protected by an approved and properly operating automatic signal, and decedent's failure to heed such signal and stop as required by 321.341, Code of Iowa. The trial court overruled the motions for directed verdict but instructed the jury that plaintiff's decedent was guilty of contributory negligence by reason of his failure to stop in obedience to the automatic signal, and then went on to say:

The only issue for you to determine in considering whether this contributory negligence bars plaintiff's claim is whether this negligence of plaintiff's decedent was a proximate cause of the collision and resulting damages.

If you find that the contributory negligence of the plaintiff's decedent was a proximate cause of the collision and resulting damages, you will find for the defendant.

The court also submitted the case to the jury on the last clear chance doctrine. The jury found for the defendant. Plaintiff's motion for a new trial was denied.

Plaintiff for reversal asserts that the trial court committed error in the following respects:

I. In determining Mr. McDowell was guilty of contributory negligence as a matter of law and in not having the jury resolve the issue of whether such negligence was a proximate cause of the injury.

II. In refusing to sumit to the jury the issue of negligence of the railroad in failing to construct and maintain a safe crossing surface.

III. In refusing to submit the issue of the railroad's failure to provide safety measures at the crossing, such as a flagman, under the showing of extrahazardous conditions.

We reject all such contentions for the reasons hereinafter stated and affirm.

I.

We are satisfied from our examination of the briefs and record that the court was warranted in instructing the jury that decedent was guilty of contributory negligence per se by failing to stop his truck and remain standing and in traversing the crossing while the crossing gate was lowered, and the automatic signal was operative, all as required by 321.341. The applicability of such statute was fully considered by this court in Chicago, Rock Island and Pacific Railroad Co. v. Breckenridge, 333 F.2d 990 (8th Cir. 1964). No change has been made in 321.341 since Breckenridge. In Breckenridge, we considered and cited pertinent Iowa decisions and concluded that a motorist who approached a railroad crossing protected by approved and operative automatic signals and who failed to comply with 321.341 was guilty of contributory negligence as a matter of law unless legal excuse, as defined in Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552 (1932), is shown. In Breckenridge we set out in full 321.341 and the Kisling standards for determining legal excuse. 333 F.2d at 992. At pages 995 and 996 we point out that evidence of obstruction of view and evidence that the signal operated on occasions when no trains were approaching does not constitute legal excuse. We quoted from Wachter v. McCuen, 250 Iowa 820, 96 N.W.2d 597, 601 (1959), as follows:

"Since the failure to comply with * * * a safety stat...