Rastede v. Chi., St. P., M. & O. Ry. Co.
| Citation | 212 N.W. 751,203 Iowa 430 |
| Decision Date | 15 March 1927 |
| Docket Number | No. 38123.,38123. |
| Parties | RASTEDE v. CHICAGO, ST. P., M. & O. RY. CO. ET AL. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; Robert H. Munger, Judge.
Action at law for a wrongful death caused in the state of Nebraska. It is prosecuted by the administrator of the estate of deceased for the benefit of the “next of kin.” The cause of action is predicated upon a certain statute of the state of Nebraska, known in the record as sections 1382 and 1383 of the “Compiled Statutes of Nebraska.” Some of the alleged negligence also is predicated upon other statutes of the state of Nebraska, known in the record as sections 5377 and 5387 of the “Compiled Statutes of Nebraska.” The decedent met his death upon the highway at a railway crossing, and as the result of a collision between the automobile of the decedent and a moving engine of the defendant company. There was a verdict for the plaintiff, and the defendant has appealed. Affirmed.Jepson, Struble, Anderson & Sifford, of Sioux City, for appellants.
Ray E. Rieke, of Sioux City, and Smith, Schall, Howell & Sheehan, of Omaha, Neb., for appellee.
The decedent, Albert Rastede, was killed at defendant's railway crossing about 9 p. m. on Sunday night, July 20, 1924. He was a widower 29 years of age, and left surviving him two sons aged 8 years and 1 1/2 years, respectively. He was a farmer, and resided in Thurston county, Neb., and not far from the town of Emerson. At the time of the accident he was one of a party of four occupying his own automobile and traveling westward toward his home. The party had left Sioux City at 7 p. m. The party consisted of Rastede, Rudolph Johnson, Miss Lewin, and Mrs. Payne. At the time of the accident Johnson was driving, and Miss Lewin occupied the front seat with him. Rastede occupied the right side of the rear seat and Mrs. Payne the left side of the same seat. Their course was westward, and they were traveling upon the main-traveled road between Sioux City and Emerson. The road crossed the railway of the defendant at right angles at the place of the collision. While making this crossing, the automobile was struck by one of defendant's engines coming from the north and running backward without any lights pointing southerly except a red light and a small white light with no reflector. The automobile had partially covered the crossing before the collision, and it was struck in such a way as to carry it southwesterly to the west side of the railway track. One of the occupants, Mrs. Payne, was thrown from the automobile and clear of its wreckage. The other three occupants were pinned underneath the car. An explosion occurred, and a fire burst forth in the wreckage, and the three occupants lost their lives therein. The general nature of the negligence charged against the defendant was that it was operating its engine in the night without proper lights and without proper warning, and at a dangerous rate of speed under such circumstances.
The engine in question was a “helper.” It appears that from the town of Emerson northeasterly to the town of Nacora on the defendant's line there is an upgrade which calls for the service of two engines to pull a freight train thereover. At 8 o'clock on that evening a freight train left Emerson, and was assisted by the engine as far as Nacora, a distance of 5 1/2 miles. Arriving at Nacora, this engine was detached from its service. Another freight train at Nacora was headed for Emerson and took the right of way. Shortly thereafter this engine took the right of way to return to Emerson. It was on this return that the collision occurred. Sections 1382 and 1383 of the Nebraska Statutes are as follows:
“1382. Action for Death of Deceased. Whenever the death of a person shall be caused by the wrongful act, neglect, or default, of any person, company or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then, and in every such case, the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
1383. Action for Whose Benefit. Every such action shall be commenced within two years after the death of such person. It shall be brought by and in the name of his personal representative, for the exclusive benefit of the widow or widower and next of kin. The verdict or judgment should be for the amount of damages which the persons in whose behalf the action is brought have sustained, and the avails thereof shall be paid to and distributed among such persons in the same proportions as the personal property of an intestate under the inheritance laws. A personal representative shall not compromise or settle a claim for damages hereunder until the court by which he was appointed shall first have consented to and approved of the terms thereof.”
Sections 5377 and 5387 are as follows:
The foregoing are the only laws of Nebraska which are involved.
[1] I. Before proceeding to a consideration of the specific assignments of error, a few preliminary matters need to be noticed.
The question of visibility is a very important one in the case. Was it light or dark at the time of the collision? The plaintiff contends that it was dark; so dark that the engine and tender could not be recognized without the aid of lights. The defendants contend that the visibility was sufficient to enable an observer to see the engine and tender without lights. The evidence for the plaintiff is that the collision occurred at 9 p. m.; that for the defendant, that it occurred somewhat earlier. The engineer, who is a defendant, testified as a witness that it was between 8:30 and 8:40. He further testified that, as he approached this crossing, 150 to 200 feet away, he saw the reflection of an automobile light from the east extend over the crossing, but that he was unable to see the automobile itself, and did not see it as it approached the crossing; that he did see a dark object pass in front of (or behind) the backing tender just before the collision. The watch of one of the victims was taken from the ashes in a broken condition, and indicated 9 o'clock as its stopping time. A weather observer testified that the sun set that evening at 7:56, and that the ordinary time of twilight would be 35 minutes thereafter. The moon was due to rise at 10:45. The weather became cloudy about 7 p. m., and continued cloudy up to the time of the accident. The freight train which this “helper” pushed left Emerson at 8 o'clock with its headlights already on. The cloudy weather necessarily shortened the twilight. Whether the time be regarded as 8:40 p. m. or as 9 p. m., it is very evident upon the record that darkness rather than light represented the prevailing visibility.
The approach of the engine to this crossing was through a considerable cut. Only the upper part of the engine and tender could be seen at any point up to close proximity to the tracks. The running of this engine without lights appears to have been a violation of section 5387. The use of the red light not only failed to be a compliance with any rule, but its use was misleading and deceptive. The recognized significance of the red light is that the train is proceeding in the other direction. It is intended to guard the train against approach or collision from the rear. It does not operate as a warning to an observer of the backing of the train, but does operate as an assurance to the observer that the train is proceeding, or is about to proceed, in the other direction. Because of its deceptive effect, the presence of this red light at the rear end of a backing train became a rather peculiar negligence on the part of the defendant, and tended to excuse the observer from discovering...
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