Peterson v. Chicago, Milwaukee & St. Paul Railway Co.

• Decision Date: 27 January 1919
• Docket Number: 32411
• Parties: MARTIN M. PETERSON, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

170 N.W. 452

185 Iowa 378

MARTIN M. PETERSON, Appellee, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

No. 32411

Supreme Court of Iowa, Des Moines

January 27, 1919

Appeal from Clay District Court.--N. J. LEE, Judge.

ACTION to recover damages for injury to property. The opinion states the facts. Verdict and judgment for the plaintiff in the court below. Defendant appeals.--Reversed and remanded.

Reversed and remanded.

Hughes Sutherland & O'Brien and J. W. Cory & Son, for appellant.

R. F Mitchell and Cornwall & Cornwall, for appellee.

GAYNOR J. LADD, C. J., PRESTON and STEVENS, JJ., concur.

OPINION

GAYNOR, J.

On the 15th day of December, 1915, the plaintiff was driving a Buick automobile on a public highway. This highway crossed the tracks of the defendant company at right angles. Defendant's tracks run east and west, and the highway, north and south. Plaintiff approached the track from the south, and, when within about 200 feet of the track, he saw the head light of a train approaching from the east. He did not, however, stop his car, but proceeded at about 10 miles an hour, keeping a constant lookout for the train, and saw the train just as he went upon the track. It was then about a mile and a half away. He says that, as he was in the act of crossing the track, his engine died, and left him with the front wheels over the far rail, and the hind wheels up against the first rail. He claims that, after his engine died, he made an effort to start it by cranking, but failed, tried to push it from the track, and failed, and then went 75 to 80 feet towards the approaching train, and flagged it with a red handkerchief; that, notwithstanding this, the train continued on until it reached the point where the automobile was, struck the automobile, pushed it off the track, and greatly damaged it. It is to recover this damage that he brings this action. The negligence charged is:

(1) That the defendant failed to maintain a safe high way crossing at the place where the injury occurred; that the crossing planks on either side of the rails were several inches above the level of the highway, and rendered the crossing dangerous and unsafe for one traveling in an automobile; that, as a proximate result of this negligence, his car received a sudden jolt or jar in attempting to cross, which caused the engine to die, and remain upon the tracks.

(2) That the servants of the defendant in charge of the train failed to keep a proper lookout, in approaching the crossing, to discover plaintiff's automobile upon the crossing, and failed to stop the train in time to avoid the injury; that, if they had kept such a lookout, they would have discovered plaintiff, and the peril in which his car was placed, and could and would have avoided the injury.

(3) That they knew, or by the exercise of reasonable diligence should have seen and known, that plaintiff's automobile was standing upon the crossing, in a place of danger, in time to have stopped the train and avoided the collision, and failed to exercise reasonable care, after discovering plaintiff's peril, to stop the train.

At the conclusion of the evidence, the defendant moved to withdraw the first charge of negligence from the consideration of the jury, on the theory that there was no evidence that the crossing was defective, and, therefore, no basis for the charge of culpable negligence on account of the construction and then condition of the crossing. This motion was overruled, and the court proceeded to submit the same to the jury.

After the instructions were prepared and submitted to counsel, counsel for the defendant again objected to the submission of the claim that the crossing was defective, or that the defendant had failed to maintain a safe and sufficient crossing, for the reason that there was no evidence tending to support a claim of negligence predicated on that issue. The court, however, ignored this objection also, and proceeded to say to the jury, among other things, that the plaintiff claimed that the defendant railway company and its employees were negligent in the following particulars:

"(1) In that the defendant failed to maintain a safe highway crossing at said place, because of the fact that the planks of the crossing and the rails of defendant's track at said crossing were several inches above the level of the approach to said crossing.

"(2) In that the servants, agents, and employees in charge of the train failed to keep a proper lookout in approaching said crossing, and in failing to stop said train in time to avoid the collision.

"(3) In that the agents, employees, and servants of the defendant company in charge of said train saw or knew, or by the exercise of reasonable diligence should have seen and known, that plaintiff's automobile was standing upon said crossing and in a place of danger in time to have stopped the train and avoided the collision and injury to said car; and that the said agents, employees, and servants of the defendant at that time knew, or by the exercise of reasonable care should have known, that said automobile would be destroyed unless the train was stopped be fore striking the same; and that they failed to stop said train in time to avoid said collision with the said automobile.

"The plaintiff alleges that, in attempting to cross over said crossing, his car and engine became stalled because of the jar it received from the said uneven condition of said crossing and approach; and the plaintiff alleges that the said negligence of the defendant, as aforesaid, was the proximate cause of the collision with said automobile and its destruction.

"The defendant admits that it is a corporation, but denies each and every other claim and allegation made by the plaintiff, and especially denies that it was guilty of any negligence as claimed by the plaintiff."

In the next instruction, the court said:

"In the foregoing instruction I have given you the matters in dispute between the parties which you are required to decide;" and in the 13th instruction said that, if the servants of the defendant company were guilty of any acts of negligence complained of by the plaintiff, then the defendant would be guilty of negligence."

We set out so much of the court's charge to the jury, because it is strenuously contended by plaintiff that the court did not submit, as a basis for recovery, the charge that the crossing was defective, and for the further reason that defendant bases error on its submission.

It is apparent, although it is controverted, that the court did submit to the jury negligence predicated upon the unsafe condition of the crossing, and did say to the jury that, if the defendant was negligent in respect to the crossing, its unsafe condition, etc., and this negligence was the proximate cause of the injury, then the plaintiff could recover. Nowhere, in the instructions given, did the court tell the jury what the duty of the defendant was with respect to maintaining a crossing. Nowhere, after stating the issues, did the court again refer to this particular claim of negligence as a claim upon which they could predicate negligence, nor did the court inform the jury in any way as to what the duty of the company was, with respect to the maintenance of crossings.

Negligence presupposes a duty, a duty owed to the public generally, or a duty owed to the individual complaining. It is the violation of the duty that constitutes the negligence. The duty is imposed by law in this case. Section 2054 of the Code of 1897 provides that every railway shall construct, at all points where such railway crosses any public road, good, sufficient, and safe crossings.

When the facts upon which negligence is predicated are proven, and these may or may not establish negligence then it becomes the duty of the court to instruct the jury fully as to what the law is, applicable to the facts proven, so that the jury, in considering the facts, may know whether, under the law, negligence can be predicated upon the facts proven. This is not always true, because some acts, when proven, are in themselves such a gross violation of duty known and appreciated by all men that the sense of the jury will readily see the relation between the facts proven and the...