Mead v. Scott

• Decision Date: 20 October 1964
• Docket Number: No. 51473,51473
• Citation: 130 N.W.2d 641,256 Iowa 1285
• Parties: Paul E. MEAD, Administrator of the Estate of Jackie Earl Mead, Deceased, Appellant, v. L. W. SCOTT, Chicago & North Western Railway Co. and David M. Risdal, Appellees.
• Court: Iowa Supreme Court

Page 641

130 N.W.2d 641

256 Iowa 1285

Paul E. MEAD, Administrator of the Estate of Jackie Earl Mead, Deceased, Appellant, v. L. W. SCOTT, Chicago & North Western Railway Co. and David M. Risdal, Appellees.

No. 51473.

Supreme Court of Iowa.

Oct. 20, 1964.

D. W. Countryman, Nevada, for appellant.

Davis, Huebner, Johnson & Burt, Des Moines, and Donald L. Nelson, Nevada, for appellees L. W. Scott and Chicago & N. W. Ry. Co.

Smedal, Maurer & Brewer, Ames, for appellee David Risdal.

GARFIELD, Chief Justice.

Plaintiff, Paul E. Mead, as administrator of his deceased son's estate, brought this law action to recover for his death against the Chicago & North Western Railway Co., L. W. Scott, engineer of the freight train that collided with the automobile in which decedent was a passenger, and David M. Risdal, owner of the automobile being driven with his consent. Recovery was sought from the railroad and Scott on the ground they were negligent in operating the train and from Risdal on the ground his son drove the automobile recklessly. Following trial there was a jury verdict for all defendants. From judgment thereon plaintiff has appealed.

Plaintiff's contentions upon this appeal relate primarily to his case against the railroad and its engineer. It least it is not claimed the judgment in defendant Risdal's favor should be reversed if the judgment for the other two defendants should be affirmed.

The grade crossing is at the west edge of the town of Colo (1960 population 574). The two boys had stopped on Main Street which in general parallels the railroad tracks. The automobile was then driven west on Main Street to the north-south street which crosses the railroad tracks about a half block north of Main Street, and then turned north onto the crossing where it collided with the front of the westbound train. The railroad has double tracks and the train was traveling on the south (left-hand) track at about 60 miles an hour. The automobile was going only 15 to 20 miles per hour. The collision occurred about 10:35 a. m., December 22, 1962. Heavy, wet snow was falling. The automobile was carried and thrown about 150 feet west and a little south of the crossing. Both boys were killed.

I. Plaintiff's first assigned error is that the jury should have been permitted to return a verdict against the railroad even though it found in favor of defendant engineer. The contention cannot be accepted.

The court submitted to the jury only three charges of negligence against Scott and the railroad--that Scott was negligent in 1) operating the train at excessive speed, and 2) failure to ring the bell, and 3) sound the whistle. Although plaintiff's petition makes several other charges of negligence he did not object to the failure to submit others to the jury. No such objection is, or could be, made here. Rule 196, Rules of Civil Procedure, 58 I.C.A.

Plaintiff did object to the court's failure to submit a form of verdict against the railway only. The trial court correctly ruled that the engineer was admittedly in charge of speed, bell and whistle and the only way in which the railroad could be liable would be if the engineer was negligent. The jury was properly instructed that negligence of Scott in one or more of the respects submitted would be charged to the railroad.

Plaintiff's argument is that the railroad could properly be found negligent for excessive speed of the train even if the engineer were free from negligence in this regard. It is not claimed this would be true of the other two submitted charges of negligence. We understand plaintiff to reason that since the question of excess speed should be determined in the light of surrounding circumstances of weather, visibility of the train and other physical facts for which the engineer is not responsible, the railroad might alone be liable for speed. The argument is unsound. These and other circumstances should be considered on the question whether the engineer was negligent in fixing the speed of the train. Circumstances alone would not render the railroad liable for speed if the engineer should be exonerated of this charge.

The only authority cited for this assigned error is Wickman v. Illinois Central R. Co., 253 Iowa 912, 914-915, 114 N.W.2d 627, 628. We do not find it supports the claimed error. Indeed we think it is unfavorable to plaintiff. The language relied upon deals with whether the railroad there could be found liable for failure to place a watchman, some safety device or adequate warning signs at the crossing--obviously a failure for which the railroad alone might be liable and over which the trainmen had no control. As before indicated, it is not contended similar charges of negligence in the petition here should have been submitted to the jury.

We think the point under discussion is ruled by Lahr v. Chicago & N. W. R. Co., 212 Iowa 544, 553-554, 234 N.W. 223, and citations; Glass v. Hutchinson Ice Cream Co., 214 Iowa 825, 833, 243 N.W. 352. See also Plumb v. Minneapolis & St. L. Ry. Co., 249 Iowa 1187, 1199, 91 N.W.2d 380, 388.

II. Error is assigned in not granting a new trial because of misconduct of three jurors in visiting the scene of the accident for the purpose of viewing it.

Attached to plaintiff's motion for new trial was the affidavit of a juror that she and two other lady jurors visited the scene of the accident during the trial for the purpose of viewing it. It was a very clear day. As stated, it was snowing when the accident occurred. The affidavit recites: 'I saw the house on the right and realized it plus poor visibility would make it hard to see a train coming from the east. I was impressed by the fact the distance (179 feet) from the corner (on Main Street) to the track was very short or appeared so to me.'

The affidavit goes on to state that when the jury got into the jury room a juror asked if anyone had gone to the place of the accident; the affiant said she had; the first juror then said 'that made it a mistrial and we might as well go home'; as the affiant was about to report (evidently to the trial judge) her visiting the place, someone said that wouldn't make a difference and she did not report it. The affidavit also recites that one of the jurors who accompanied affiant was one of the principal spokesmen in favor of the railroad and 'the impression I got from what she said was it had not been proved the railroad was negligent.'

No counter affidavits were filed nor was oral testimony taken in support or defense of this ground of the motion for new trial.

Of course it was misconduct for the three jurors to visit the place of the accident. Rule 194, Rules of Civil Procedure, in pertinent part, provides: 'When the court deems proper, it may order an officer to conduct the jury in a body to view any * * * place where a material fact occurred, and show it to them.' But misconduct of the jury is not a ground for new trial unless it 'materially affected * * * substantial rights' of the 'aggrieved party' or 'prevented the movant from having a fair trial' (rule 244, R.C.P.).

We have held many times that to justify a new trial because of misconduct of jurors it must appear the misconduct was calculated to and it is reasonably probable did, influence the verdict. Also that the trial court has a good deal of discretion in passing on such a ground. We will not interfere with his ruling unless it is reasonably clear such discretion has been abused. Hackaday v. Brackelsburg, 248 Iowa 1346, 1350-1351, 85 N.W.2d 514, 517, and citations. (Three of the citations are in 248 Iowa.) See also Bashford v. Slater, 250 Iowa 857, 867-868, 96 N.W.2d 904, 910-911, and citations; Note 10, Drake Law Review 126, 127.

The trial court presumably found the jurors' misconduct probably did not influence the verdict or prevent plaintiff from receiving a fair trial. It does not clearly appear this was an abuse of discretion.

Plaintiff places much reliance on Skinner v. Cron, 206 Iowa 338, 220 N.W. 341. We think a stronger showing of misconduct of jurors was there made. One or more jurors 'visited the scene of the collision, viewed the premises and made estimates as to the ability of the witnesses to observe the collision from the place where they testified that they observed it, and sought out the street intersection where the collision occurred and examined and measured the same, with the view of arriving at a conclusion as to how the accident happened, apart from the evidence * * *' (pages 339-340 of 206 Iowa, pages 341-342 of 220 N.W.). We also held the trial court abused its discretion by refusing to hear oral testimony of jurors summoned by the aggrieved party. Skinner v. Cron is discussed in a note in 37 Iowa Law Review 399, 401-404.

Here no controversy really existed over the matters these jurors observed. Although, as stated, it was a clear day when they visited the scene, the affidavit indicates the affiant then had in mind the poor visibility on the day of the accident. The principal impression the affiant apparently received from this view of the scene is that it would be 'had to see a train coming from the east.' In these railroad crossing cases it is frequently contended poor visibility at the crossing is a circumstance favorable to the injured party rather than to the railroad.

III. Plaintiff's third assignment is based on the exclusion of evidence of prior fatalities at this crossing for the purpose of showing it was more than ordinarily hazardous.

In Iowa evidence of prior accidents and near accidents at a railroad grade crossing is admissible for the purpose of showing it was more than ordinarily hazardous. However, it must appear conditions were comparable and the occurrences not too remote. Berk v. Arendts, 254 Iowa 363, 370, 117 N.W.2d 905, 909, and citations. See also Jackson v. Chicago, M., St. P. & P. R. Co., 238 Iowa 1253, 1264, 30 N.W.2d 97, 103, and citations.

The evidence offered here fails to meet the test of comparability...