McLeod v. Chi. & N. W. Ry. Co.

• Citation: 125 Iowa 270,101 N.W. 77
• Parties: MCLEOD v. CHICAGO & N. W. RY. CO. ET AL.
• Decision Date: 20 October 1904
• Court: United States State Supreme Court of Iowa

125 Iowa 270

101 N.W. 77

MCLEOD

v.CHICAGO & N. W. RY. CO. ET AL.

Supreme Court of Iowa.

Oct. 20, 1904.

Appeal from District Court, Woodbury county; John F. Oliver, Judge.

The opinion states the case. Affirmed.

F. E. Gill and Hubbard & Burgess, for appellant.

James C. Davis and T. F. Bevington, for appellee Chicago & Northwestern Railway Co.

J. S. Lawrence, for appellee Sioux City Traction Co.

WEAVER, J.

The Chicago & Northwestern Railway Company operate a line of railway having a terminal in the city of Sioux City, Iowa. The Sioux City Traction Company operates an electric street car system in the same city. In connection with and as a part of the same general system, the traction company owns a trolley line extending from the central station in said city across a bridge which spans the Missouri river to a point in the state of Nebraska. One of the street railway tracks crosses the track of the Chicago & Northwestern Railway within the corporate limits of Sioux City, at the intersection of Dace and Lafayette streets. On January 23, 1903, the plaintiff was a motoneer in the employ of the traction company, and was moving a car eastward on Dace street in the direction of the crossing. At a point about 20 feet from the intersection of the two tracks, plaintiff stopped the car; and the conductor, as was his duty, went ahead to the opposite side of the track to ascertain whether the crossing could be made in safety. It is the claim of plaintiff that the conductor beckoned him forward, and in response to the signal he set the car in motion. Just at that time an engine, moving from the south, came in collision with the car, and plaintiff was injured. It is alleged that the railway company is chargeable with negligence in respect to the collision, because the engine gave no signal or warning of its approach, and was being operated at a high and dangerous rate of speed, in violation of the ordinances of the city. Negligence is also imputed to the traction company because of the alleged carelessness of the conductor of the car in signaling the plaintiff across the track. Both defendants took issue upon the allegations of the petition, and the cause was tried to a jury. At the close of the testimony the defendants severally moved for a directed verdict in their favor. Both motions were sustained, and upon the verdict thus returned there was judgment against plaintiff for costs, and he appeals.

1. We will first consider the case made against the railway company. Without stopping to review the testimony, we will say there was evidence as to the rate of speed at which the engine was moving, and of the failure of the enginemen to give signal or warning of their approach, which would have justified the jury in finding the railway company negligent. We have, then, next to inquire whether plaintiff shows himself free from contributory negligence. Under the law of this state the burden is upon him to show that he exercised reasonable care for his own safety, and, if he failed to make such showing, or if the facts developed conclusively and affirmatively demonstrate that he did not exercise such care, and that such omission contributed to bring about the collision, then he cannot recover, and the trial court was right in its ruling. It is the claim of the plaintiff that he stopped his car within 20 feet of the crossing, and that as he stopped he looked to the south, and saw no engine approaching. He then waited for the conductor to reach the other side of the track and signal him across, and, having received the signal to go forward, he at once undertook to obey, and was struck as before stated. Under many circumstances this testimony might well be taken as sufficient to carry the question of contributory negligence to the jury; but it has often been held that, where the situation and surroundings are without controversy shown to be such that, had the person looked in the direction of an approaching train, he could not have failed to see it, his testimony that he did look and did not discover it raises no issue upon which a party is entitled to demand a verdict. Artz v. R. R., 34 Iowa, 153. It is equally well settled, and the rule is too familiar to justify the citation of authorities, that one who approaches the crossing of a railway track upon which there is coming in plain sight a train or engine which is liable to reach the crossing before he can safely pass to the other side, and without looking to discover his danger and without any intervening circumstance which may reasonably operate to direct or distract his attention he goes forward and is injured, he is held guilty of contributory negligence as a matter of law. The undisputed facts in the record before us bring the case within the rules just cited. Stating the situation as given by the plaintiff himself, the motor of his car was in good order, and at the rate at which the car was moving when struck he could bring it to a stop within a distance of four or five feet. He was perfectly familiar with the situation, having operated a car over it 20 or more times every day for several years. Approaching the crossing from the west, he had the car under complete control, and brought it to a full stop. The railway track which he was about to cross extended in a straight line to the south at least 1,000 feet, and from the point where the car was stopped the view to that distance was open and unobstructed, unless it be that certain telegraph or telephone poles created a partial screen in that direction. He did look just as he brought the car to a stop, and says he did not see the engine approaching. If it be true that the poles interfered with his view at that point, it is also true that passing the range of the poles, and before reaching the crossing, there was a clear space in which, had he looked, he must have discovered his danger in time to avoid it. He says: “While I was standing still with the car I never looked to the north or south for an approaching train. I was watching the conductor. I listened, and heard no car. Then I started my car, and looked north, and saw no engine coming. When I looked south, I was so close to the track that I couldn't stop the car until I came in collision with the locomotive. If I had looked south, I could have seen that engine coming three blocks. I couldn't look three ways. I was watching the conductor. I couldn't look south or north and watch the conductor. I would have seen the engine if I had looked south just before I started, if these posts wouldn't have obstructed my view. I recognize that as a photograph of the place of the accident. I recognize those as the trees mentioned as being south of the track, and those as the posts I have spoken of. I think it would obstruct the view. The three posts shown in the photograph are about twenty feet from the track. After you get past the trees and posts you have an unobstructed view, looking south beyond the Floyd Bridge, after you get here (indicating point in photograph). Before you reach the telephone poles, you have an unobstructed view south of the Northwestern track. After you leave the telephone poles, you have another unobstructed view. You can see down to the curve. * * * I could have turned my head to the north, and then to the south, before I put on the power, but I didn't. I started the car when he signaled.” On cross-examination he also says that one of the rules of his employment required him to bring his car to a full stop, and look and listen, before moving his car over a railway crossing, and adds: “The rule was in force. It was not exactly my understanding that all I had to do was to rely on the conductor, and that I need not look or listen at all. I knew that I had to...