Rastede v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.
Decision Date | 15 March 1927 |
Docket Number | 38123 |
Citation | 212 N.W. 751,203 Iowa 430 |
Parties | HENRY RASTEDE, Administrator, Appellee, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY et al., Appellants |
Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--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 his "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's. There was a verdict for the plaintiff, and the defendant has appealed.
Affirmed.
Jepson Struble, Anderson & Sifford, for appellants.
Ray E Rieke and Smith, Schall, Howell & Sheehan, for appellee.
EVANS C. J. STEVENS, DE GRAFF, and MORLING, JJ., concur.
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, Nebraska, 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 this engine as far as Nacora, a distance of 5 1/2 miles. When it arrived 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 Compiled Statutes of Nebraska are as follows:
Sections 5377 and 5387 are as follows:
The foregoing are the only laws of Nebraska which are involved.
I. Before we proceed 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 5377. 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...
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Hopkins v. Kurn
...Buchholz v. Standard Oil Co., 211 Mo. App. 397, 244 S.W. 973; State of Kansas v. United States F. & G. Co., 14 S.W. (2d) 576; Rastede v. Railroad, 212 N.W. 751; Jones v. Chicago, etc., Railroad, 80 Minn. 488, 83 N.W. 446; Lewis v. Bush, 30 Minn. 244, 15 N.W. 133; Jones v. Railroad, 243 S.W.......
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...1053; Buchholz v. Standard Oil Co., 211 Mo.App. 397, 244 S.W. 973; State of Kansas v. United States F. & G. Co., 14 S.W.2d 576; Rastede v. Railroad, 212 N.W. 751; Jones v. Chicago, etc., Railroad, 80 Minn. 488, N.W. 446; Lewis v. Bush, 30 Minn. 244, 15 N.W. 133; Jones v. Railroad, 243 S.W. ......
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