Nurnburg v. Joyce

• Decision Date: 16 February 1943
• Docket Number: 46193.
• Citation: 7 N.W.2d 786,232 Iowa 1244
• Parties: NURNBURG v. JOYCE et al.
• Court: Iowa Supreme Court

7 N.W.2d 786

232 Iowa 1244

NURNBURG v. JOYCE et al.

No. 46193.

Supreme Court of Iowa

February 16, 1943

Carr Cox, Evans & Riley, of Des Moines, and Kenneth H Davenport, of Creston, for appellants.

O M. Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellee.

MANTZ Justice.

This is an action at law brought by Mansell Nurnburg, administrator of the estate of Roger Nurnburg, deceased, against Patrick H Joyce et al., trustees of the Chicago Great Western Railroad Company, claiming in substance that by reason of certain negligent acts on the part of the agent and employees of the defendants, Roger Nurnburg lost his life, and the administrator brings this action to recover damages to the estate of the deceased.

At the close of plaintiff's evidence, and also at the close of all the evidence, the defendants made motions for a directed verdict, both of which motions were overruled and thereupon the cause was submitted to the jury, which returned a verdict for the plaintiff and against the defendants for the sum of $3,373.33, and judgment was accordingly entered upon said verdict, together with costs. The defendants have appealed to this court. For convenience, defendants and appellants are referred to in the singular.

Various grounds of negligence were pleaded by the plaintiff. The court submitted but two of such grounds to the jury: First, the claim of the plaintiff that the defendant was negligent in the operation of the train, in failing to give proper signals on approaching the crossing by the ringing of the bell; and, second, defendant was negligent in that the train was traveling at the time of the collision at an excessive rate of speed at the crossing in question.

The appellant urges that the court was in error in failing to sustain the motions for a directed verdict and by overruling the same and submitting the case to the jury.

The main argument of the appellant is devoted to its claims that the appellee failed to prove that the decedent, Roger Nurnburg, was free from negligence which contributed to his injuries and death; also that the record affirmatively shows that under the physical facts surrounding the accident Roger Nurnburg was guilty of contributory negligence; and further, that the record fails to prove any act of negligence on the part of the appellant which would be the proximate cause of the injuries and death of Roger Nurnburg.

The evidence shows that Roger Nurnburg was a farmer living about a half mile west of the town of Arispe, Union county, Iowa. He operated a 276-acre farm, 140 acres of which were on the west side of appellant's railway and 125 acres on the east side of said railway; he had moved to said farm about March 1, 1939; he was about 51 years of age, of good health; his sight and hearing were good, and he did not wear glasses. The town of Arispe has a population of one hundred, and appellant's railway tracks run approximately north and south along the west edge of said town. There is a crossing on said railway track some distance south of the depot, and a country road leading past the home of Roger Nurnburg into the town of Arispe intersects this track.

The evidence further shows that about nine o'clock a. m. November 12, 1939 (Sunday), Roger Nurnburg was driving alone, eastward on said highway, in the direction of Arispe. He was driving a Chevrolet automobile. As he approached the crossing on said railway, a motor train running south on the railway tracks of appellant approached said crossing and a collision ensued between said motor train and the vehicle in which Roger Nurnburg was riding, and as a result of said collision Roger Nurnburg lost his life.

In order to sustain the verdict herein it is necessary that the appellee show that Roger Nurnburg, decedent, was free from contributory negligence at and just prior to the time of the collision; also, that at the same time appellant was negligent, which said negligence directly and proximately resulted in the injury to Roger Nurnburg.

Appellant contends that under the record the evidence shows that Roger Nurnburg was guilty of contributory negligence as a matter of law, and such being the case, the court was in error in failing to direct a verdict as moved for by such appellant. On the other hand, appellee claims that under the record the question of contributory negligence of Roger Nurnburg was for the jury, and, the jury having found for appellee, the claim of appellant is negatived.

At the outset we are confronted with the claim of appellee that appellant's assignment of errors relied upon does not comply with the rules of this court, and, in particular, Rule 30 thereof. At the close of the evidence offered by appellee the appellant moved for a directed verdict in which there were set forth 14 items or grounds. This motion having been overruled, it was renewed when all the evidence was in and both sides had rested. The same was overruled. Exceptions were taken to both rulings.

Ground 1 of said motion is as follows: (1) The evidence fails to prove that the decedent was free from negligence which contributed to his injury; and (3) the record fails to prove that any act of negligence on the part of the defendant was the proximate cause of the injuries to, and the death of, plaintiff's decedent.

Rule No. 30 is a rule based on common sense and has for its purpose the setting out of the real error claimed, so that the opposing party and the court may understand what is being urged as grounds of the appeal. It has been liberally construed in order to carry out its real purpose. In this case we can hardly see wherein appellee has been misled. Following appellee's claim of the failure to follow Rule 30, he then proceeds to devote about 27 pages of his printed brief and argument to arguing the very point argued by appellant, to wit, the failure of the appellee to show the freedom of Roger Nurnburg from contributory negligence, and the negligence of the appellant. In such brief there are cited at least 50 cases, nearly all from Iowa, which appellee claims sustain the ruling of the trial court in submitting the cause to the jury.

We can see no merit in appellee's contention that there was no proper assignment. We believe that the appellant has sufficiently complied with our rules. Home Ins. Co. v. Fidelity-Phenix Ins. Co., 225 Iowa 36, 279 N.W. 425; Smith v. Middle States Utilities Co., 224 Iowa 151, 275 N.W. 158. Many other cases might be cited.

The main point set out and argued by appellant is the claim that appellee had failed to show that Roger Nurnburg was free from contributory negligence at the time he received the injuries resulting in his death.

Under the familiar rule the appellee is entitled to have all of the evidence viewed in the most favorable light in his behalf. To pass upon appellant's claim that Roger Nurnburg, at the time of the collision resulting in his death, was guilty of negligence which contributed to his death, calls for a review of the evidence shown by the record.

The crossing in question is upon the main line of the Chicago Great Western Railroad Company. The railway at this point and for some considerable distance to the north runs substantially north and south and almost in a straight line, and is down grade slightly from a point something like a mile north. At the crossing there is a double track, the east being the main track and the west being the passing track. The distance between the two tracks at the crossing was nine feet. In addition to the two tracks mentioned there was what was known as the house track, which connected with the passing track, and the south point of this house track was from 150 to 200 feet north of the crossing. The crossing had 18-foot planks across it and was wide enough for two cars to pass. Between the planks and the two tracks cinders were placed at various times by section men. There was some evidence that the planks were worn and rutty at times. There was a depot on the east side of the tracks about 250 to 300 feet north of the crossing, and north of the depot about 300 to 350 feet was an elevator, which was 30 feet west of the main track; and on the house track and north of the elevator, were the stockyards and coal bins. These tracks were on a roadbed which was about 4 feet above the level of the surrounding ground. The west line of the right of way at the crossing is 84 feet west of the passing track. The road leading west from the crossing is down grade for about 40 feet and there is a rise of about 4 to 5 feet in the road from a point about 25 feet west of the west crossing track to the west track.

The road runs west of the crossing about 150 feet to an "S" turn to the south of the Cheers house, which house is approximately 200 feet west of the crossing. In the Cheers yard, and south and east of the house and close thereto, stood an evergreen tree about 12 feet in diameter. There were two windows on the east side of the Cheers house and these gave a view of the depot and track and to a point a few feet north of the crossing. Just east of the Cheers house a road turned off to the north.

The crossing is for the use of a county road running west from Arispe which is the only road directly west from said town. The road from the west goes over this crossing at a slight angle, and the left front wheel of an automobile approaching from the west will contact the west rail of the track before the right front wheel touches it.

On Sunday about 9 a. m., November 12, 1939, Roger Nurnburg started for Arispe by automobile. He was driving a 1935 Chevrolet car, with the car and brakes in good condition. It had been recently overhauled and had mechanical four-wheel brakes. The...