Monson v. Chicago, Rocl Island & Pacific Railway Co.
| Decision Date | 28 October 1916 |
| Docket Number | 29714 |
| Citation | 159 N.W. 679,181 Iowa 1354 |
| Parties | M. E. MONSON, Appellee, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 14, 1917.
Appeal from Wright District Court.--C. E. ALBROOK, Judge.
THIS is an action at law to recover damages from the defendant for its alleged negligence in striking and injuring plaintiff's automobile. There was a trial to a jury, and a verdict and judgment in favor of plaintiff in the sum of $ 800. The defendant appeals.
Affirmed.
F. W Sargent, Ladd & Rogers, and Robert J. Bannister, for appellant.
Sylvester Flynn, for appellee.
The issues and claim, as stated by plaintiff, are substantially this:
On July 12, 1912, the plaintiff, accompanied by his wife and Mrs. Berg, undertook to make a trip by automobile from Elmore, Minnesota, to Manson, Iowa. The route selected passed through Goldfield and Eagle Grove. The automobile was a 4-cylinder, 40-horse power, 5-passenger Marion touring car, then in good condition and working well. It had been used less than one year, and was worth $ 1,250.
At all times mentioned, the Chicago, Rock Island & Pacific Railway Company was a duly organized corporation, engaged in owning and operating a railway system, one line of which extended through Goldfield, Iowa. About three fourths of a mile northwest of Goldfield, the public highway, extending east and west, is intersected by the defendant's right of way and railroad track, which cross the highway diagonally from southeast to northwest.
It is alleged that the defendant was negligent in the construction and maintenance of its crossing over that public highway, and in the operation of its train on that occasion; that the crossing was insufficient in the following respect: it was not properly planked. The crossing was composed of six planks, laid lengthwise and resting upon the ties supporting the two 5-inch steel rails. The west plank of that crossing was properly placed just outside of the west rail. The first plank east of the west rail was placed 15 inches farther south than the north end of the west plank. The third plank was placed 15 inches farther south than the one adjoining it on the west, and lacked 30 inches of being in line with the north end of the west plank in this crossing. The fourth plank was set 15 inches farther south than was the one adjoining it on the west, and lacked 45 inches of being in line with the north end of the west plank in the crossing. The fifth plank was set 15 inches farther south than was the plank just west of it, and lacked 5 feet of being in line with the north end of the west plank in that crossing. The sixth plank was just east of the east rail, and was set a number of inches farther south than was the one on the west side of that rail. An unplanked space or hole about 5 inches deep was left between the rails in the north end of that crossing. The part of the roadbed just east of the unplanked portion of the crossing was graded and filled for a distance of about 3 feet east of the east rail, and from that point slanted downward, and ended in an open ditch, which extended along the grade. This ditch was about 2 1/2 feet deep, and formed a hole in the approach to that part of the crossing. The west rail was 3 1/4 inches higher than the east one. The crossing was higher than the road west of it. The crossing had been in this condition for years prior to this accident, and the defendant was charged with implied notice of it.
The plaintiff had never seen this crossing before, and knew nothing concerning it. When he got within a short distance of the crossing, plaintiff stopped his machine in the beaten path and near the south line of the road. He looked and listened. There was no train in sight. He then started his car toward the track; he noticed the south end of the west plank, and turned to the north and started straight east over the crossing. The front wheel on the north side of his car ran into the unplanked space or hole in the north end of the crossing, and struck the east rail with such force that it swerved the car out of its course and turned it toward the northeast. The front wheel went over the east rail and into the ditch just east of the unplanked part of the crossing. The hind wheel on the north side of the car caught in the hole between the rails. The front wheel on that side caught in the hole or ditch in the approach. There the car struck, and Mr. Monson was unable to move it either backward or forward, or to extricate it from that position. They heard a train approaching. Plaintiff undertook to detach the tail lamp for the purpose of flagging the train. In jerking this light from the machine, it went out.
The side light on the north side of the machine was then burning brightly, and could be plainly seen in approaching from the northwest for over half a mile. To flag the train, the women waved scarfs and screamed. Plaintiff took hold of the top of the side light and moved it backward and forward as far as the bracket would permit.
The defendant's train consisted of a locomotive, a number of cars loaded with gravel, and a way car. The crew in charge of this train saw the light on or near this crossing, when the train came over the hill about three fourths of a mile from the crossing. Thereafter, the train slowed down, and came almost to a stop when about 100 yards from the crossing. The train then came forward, struck the automobile, hurled it from the track, and damaged it.
The plaintiff alleges that the defendant was negligent in the operation of the train in that, with full knowledge of the dangerous character of said crossing, the defendant's agents, employees, and representatives in charge of said train, saw and knew, or by the exercise of reasonable diligence should have seen and known, in time to have stopped said train and to have avoided striking said automobile, that the automobile was then caught in a place of danger on the public crossing, and would be destroyed unless the train was stopped before striking said automobile, and that they failed to stop said train in time to avoid collision with said car. As a direct result of the defendant's negligence in running its train over said car, after the latter was caught on said defectively constructed crossing, plaintiff sustained damages.
The defendant filed a general denial, and also specially pleaded contributory negligence on the part of the plaintiff, and, in defense, contended that the crossing was properly planked with a good and sufficient roadway; that the drainage ditch was necessary, and was covered for a width of 24 feet, which constituted a part of a good, sufficient, and safe crossing; that the plaintiff drove upon said crossing at night without any headlights, and, instead of keeping in the road, drove off the road to the north and into the ditch; that the accident occurred without any negligence on the part of the defendant, and was caused by plaintiff's own careless driving.
Defendant further contended that the train which ran into the plaintiff's automobile was a gravel train of the St. Paul & Kansas City Short Line Railroad Company, which was hauling gravel over the defendant's line of road for use in ballasting the track of the St. Paul & Kansas City Short Line Railroad Company south of Iowa Falls, and therefore that the defendant company was not responsible for the negligence, if any, of the employees on the said train.
There was a conflict in the evidence as to whether the headlights on plaintiff's automobile were lighted; but, as we understand it, there is no dispute in the evidence of the fact that the oil side lamps were burning. There was evidence on behalf of plaintiff tending to show that it was getting dark, or was dark, when plaintiff reached the crossing in question; that at Renwick plaintiff stopped, obtained oil and filled the rear lamp; that the lamps were then lighted, but were not turned on full strength; about half a mile north of this crossing, plaintiff met two men, of whom he inquired the way to Goldfield; soon after leaving them, plaintiff stopped, and turned up his Presto lights; when he approached the crossing, plaintiff thought he heard a train whistle, and stopped some distance west of the crossing, got out of his car, and looked in both directions; finding no train within sight or hearing distance, he started to drive toward the crossing; the railroad crossing is about one foot higher then the road west of it; the plank portion of the crossing was 9 1/2 feet wide; the traveled track immediately east of the crossing was 10 1/2 feet; there was a hole about 2 1/2 feet deep at the east of the crossing and a short distance from the east rail; it was about 2 feet from the north side of the traveled track to the end of the culvert; the hole begins at the north end of the culvert and runs northwesterly, parallel with the grade; it is an open ditch for carrying surface water to the culvert; it is 4 feet from the east rail at the north of the railroad crossing to the point where the roadbed begins to slope towards the open ditch, and 7 feet from the east rail to the bottom of the ditch; the ditch was overgrown with weeds; the planks composing the crossing before referred to were 16 feet long, 4 inches thick, and beveled at each end; the north end of the fifth plank was between 5 and 6 feet farther south than was the north end of the first plank on the west side of the crossing; this left an unplanked, three-cornered space or hole 5 inches deep between the rails in the north end of the crossing. When plaintiff stopped his machine to look for a train, he was about 4 rods west of the crossing,...
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