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

• Decision Date: 22 January 1908
• Citation: 114 N.W. 622,138 Iowa 283
• Parties: MITCHELL v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

138 Iowa 283

114 N.W. 622

MITCHELL

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

Supreme Court of Iowa.

Jan. 22, 1908.

Appeal from District Court, Davis County; C. W. Vermillion, Judge.

The defendant appeals from a judgment awarding plaintiff damages for injuries received in a collision of defendant's train and certain cars on its track. Affirmed.Carroll Wright, J. L. Parrish, McNett & McNett, and S. S. Carruthers, for appellant.

H. C. Taylor and Payne & Sowers, for appellee.

LADD, C. J.

Plaintiff was a passenger on defendant's train. It consisted of the engine, tender, and nine cars, and left Trenton, Mo., at 10:50 o'clock p. m. It was about 40 minutes late, and had gained 7 minutes before reaching Clio, Iowa. At that station there was a house track south of the main line, and a passing track north. The former was used to stand cars on when not in use, or to be loaded and unloaded. Trains backed on the latter to allow others to pass, and in cases of emergency cars were stored thereon. Owing to improvements being made, cars had been stored on the passing track during the three weeks previous, and on this evening some 76 cars were there, and in some way several gravel or ballast cars had run out on the main line to the west. The engineer did not observe these until within 200 feet, too late to avoid a collision. Instantly he threw the air brake into an emergency, so as to “give the cars a chance to spread” and prevent them from telescoping, with the possibility of clearing the track by the impact against the standing cars. Two or three of these were broken in pieces, but the engine was thrown from the track. The plaintiff was injured, and in this action bases his demand for relief on four allegations of neglect: (1) The operation of the passing track upon a grade without a derailing switch to prevent cars thereon from running on the main track; (2) the leaving of loaded and detached cars on the passing track without adequate brakes, or brakes set, or adequate precaution to prevent them from running on the main track; (3) permitting cars to be or run so near to or on the main track as to obstruct the same, or be at the place of collision; and (4) failure of defendant's employés in operating the train to observe the cars on the track in time to avoid the collision, and operating it at an excessive rate of speed, without having it under control. The evidence left no doubt but that plaintiff was injured by reason of the derailment of the engine, and this cast the burden of proof on the defendant to show that the collision occurred, notwithstanding the exercise by it of the highest degree of care consistent with the practical operation of its road. Whittlesey v. Railway, 121 Iowa, 602, 90 N. W. 516, 97 N. W. 66;Cronk v. Railway, 123 Iowa, 354, 98 N. W. 884. The gravel cars were out on the main track, and in exculpating itself from the charge of negligence to be inferred from the accident the defendant necessarily undertook to explain how this happened, and that with the cars there the engineer could not, in the exercise of the car required, have seen the cars in time to have avoided the collision. See Jones v. Railway, 178 Mo. 528, 77 S. W. 890, 101 Am. St. Rep. 434. Many of the exceptions saved relate to evidence introduced by plaintiff to meet such explanation.

1. One Durflinger testified that an engineer in approaching the switch could have seen gravel cars on the main track from a point 625 feet west of the switch, and that his ability to see would depend on the proper adjustment of the headlight, on the weather, and the eyesight, and that in such a night as that in question, with the lights properly equipped and adjusted, he could have seen close to a quarter of a mile. In so far as the competency of the witness is discussed, the argument is not pertinent, for no such objection was interposed. The witness did not undertake, as is assumed in argument, to say what would be the proper adjustment of the light, but expressed his opinion, based on its proper adjustment. As the defendant was required to exercise the highest degree of care, it was not too much to assume that conditions were such as it was bound to have them. Nor is the suggestion sound that the inquiry was so far a matter of common knowledge as not to be the subject of expert evidence. How far a person could see, under the circumstances, was so far out of range of the information and experience of an ordinary juror as to render the testimony of persons familiar with the subject competent.

2. Objection was made and overruled to evidence that derailing switches are customarily used on house tracks, especially in defendant's system; that they are ordinarily left so that cars cannot get past; that passing tracks are seldom if ever used for storage of cars, save in event of accidents, and when the side track is on an incline; that the brakes of the cars should be set, and, in the absence of a derailing switch, that the cars are often blocked by pieces of wood under the wheels; and that in these circumstances the local agent is supposed to look out for these cars. This evidence was rightly received as explaining precautions necessary to be taken in the use of the house track for the reception and storage of cars. The passing track was not customarily used for that purpose. It was a side track, however, and when used for the storage of cars any considerable length of time it is difficult to understand why precautions equivalent or similar to those taken to guard the cars left on the house track ought not to be taken for protection of trains on the main track. The evidence tended to show that the passing track had been used for the storage of cars about three weeks, while certain improvements in the vicinity of the station were being made; and, as bearing on the issue of negligence, it was competent to show what precautions were usually taken in caring for cars placed on side tracks customarily used for the storage of cars, regardless of the name by which these were designated. Everything else being equal, it would seem there should be the same degree of care exercised in guarding cars stored on the passing track that should be given to those on the house track, even though the same appliances be not used. The evidence was admissible.

3. One Shelton was allowed to testify over objection that the storage of cars on a side track which is on an incline without a derailing switch would be dangerous; that the derailing switch was a common safety device in proper railroading; and that, in leaving a car on an incline, the brakes should be set; and, if a chunk is handy, it should be blocked. The evidence was admissible, as it related to what should be done in ordinary railroading. While perhaps the witness ought not to have been asked whether to do a thing in a certain way would be dangerous, yet this amounted to no more than inquiring whether this would be proper railroading under the circumstances.

4. Error is also assigned in that the court did not withdraw the charge of negligence in failing to make use of the derailing switch on the passing track. Ordinarily the derailing switch is not employed on such tracks, but it appears from enough evidence to have warranted the jury in so finding that the passing track is never used, save in event of accidents, for the storage of cars. The mere name by which the track is designated is immaterial. The jury might have found that notwithstanding the name this passing track had been used in the manner of house tracks for the three weeks previous to the accident, and because of such use the jury might have concluded that the defendant was negligent in not taking the same precautions, or doing something equivalent thereto, for the protection of passing trains.

5. Error is also assigned because the court did not withdraw the charge of negligence against the engineer in failing to observe the obstruction in time to avoid the collision. The evidence was such as to fairly take this issue to the jury. We concur in all that is said of the courage and coolness and discretion of N. E. Sherwood, the engineer, at a time when all these qualities were so necessary to save the lives of those who had placed themselves in his keeping. The record presents an example of heroic bravery and fidelity to duty on his part, worthy of the highest commendation. He did all that was possible to do, after seeing the cars on the tracks; but did he observe them as soon as he should under the peculiar circumstances of this case? That question was for the jury to decide.

6. Defendant takes exception to submitting to the jury the issues with respect to the use of the derailing switches, and the consideration of the passing track on an incline, and the speed of the train. These matters were brought to the attention of the jury, in connection with the storage of cars on the passing track, and the care which should be given to prevent them running onto the main track, and to avoid a collision therewith. They were not submitted as independent grounds of negligence, only as such in view of the use made of the track. Ordinarily railroads may operate their passenger trains at any rate of speed consistent with the safety of passengers. Here, however, the engineer had been advised that there would be 76 cars on the passing...