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

• Decision Date: 26 January 1892
• Citation: 51 N.W. 157,84 Iowa 331
• Court: Iowa Supreme Court
• Parties: NIXON v. CHICAGO, R. I. & P. RY. CO.

84 Iowa 331

51 N.W. 157

NIXON

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

Supreme Court of Iowa.

Jan. 26, 1892.

Appeal from district court, Wapello county; C. D. LEGGETT, Judge.

The plaintiff commenced this action to recover damages sustained by a personal injury received by a collision with a train of cars at a public road crossing about one-half mile from Eddyville. The defendant answered by a general denial. The cause was tried to a jury. The plaintiff introduced his evidence; and the defendant, without offering any evidence, moved the court to instruct the jury to return a verdict for the defendant. The motion was sustained and the verdict returned as ordered, and from a judgment thereon the plaintiff appeals.T. B. Perry and W. H. C. Jacques, for appellant.

T. S. Wright and McNett & Tisdale, for appellee.

ROTHROCK, J.

The train by which the plaintiff was injured was a passenger train on the defendant's road running south from Des Moines. It is not claimed that it was running at an improper rate of speed. The evidence shows that the whistle on the engine was not sounded nor the bell rung before approaching the crossing. The ruling of the court was upon the ground that, notwithstanding there was no signal for the crossing, the plaintiff was negligent in driving on the railroad crossing without discovering the approaching train. This is the sole question involved in the appeal.

It is conceded by counsel for appellant that ordinarily there is no excuse for one about to cross a railroad track, to recklessly drive upon the crossing without stopping and looking and listening for an approaching train. And this rule has so frequently been announced by this court, as well as the courts elsewhere, that we need not cite the cases. Probably as clear a statement of the rule as has been made is to be found in Pierce on Railroads, (page 343.) It is as follows: “A traveler upon a highway, when approaching a railroad crossing, ought to make a vigilant use of his senses of sight and hearing in order to avoid a collision. This precaution is dictated by common prudence. He should listen for signals, and look in the different directions from which a train may come. If, by neglect of this duty, he suffers injury from a passing train, he cannot recover of the company, although it may itself be chargeable with negligence, or have failed to give the signals required by statute, or be running at the time at a speed exceeding the usual rate.” The above rule is sustained by a multitude of adjudged cases. They will be found collected and cited in 4 Amer. & Eng. Enc. Law, p. 70.

It is true there are exceptions to this rule. There may be such circumstances surrounding the traveler as that his failure to look and listen for a train may exonerate him from the charge of contributory negligence; or, rather, such failure may under some circumstances rebut the apparent negligence, and require that the question be submitted to the jury. The traveler may be placed, without his fault, in some dilemma, some place of danger, where the exigencies of his situation and an emergency may excuse him for going on the track without looking and listening. Such exceptions are shown in the cases of Laverenz v. Railway Co., 56 Iowa, 689, 10 N. W. Rep. 268;Funston v. Same, 61 Iowa, 452, 16 N. W. Rep. 518;Schmidt v. Railway Co., 75 Iowa, 606, 39 N. W. Rep. 916. These and other cases which might be cited serve to show what conflicting and unusual circumstances will be an excuse for a failure to discover an approaching train. These circumstances are so varied that they cannot be cited and commented upon in an opinion without unduly extending the subject. They involve obstructions on the track which prevent an approaching train from being seen by the traveler; and where there are several tracks, and trains running on them in different directions, and one train obscured by another; the fact that the railroad track is...