Reysack v. Joyce

• Decision Date: 05 May 1942
• Docket Number: 45866.
• Citation: Reysack v. Joyce, 232 Iowa 415, 3 N.W.2d 535 (Iowa 1942)
• Parties: REYSACK v. JOYCE et al.
• Court: Iowa Supreme Court

3 N.W.2d 535

232 Iowa 415

REYSACK v. JOYCE et al.

No. 45866.

Supreme Court of Iowa

May 5, 1942

Carr, Cox, Evans & Riley and Hubert C. Jones all of Des Moines, and Shepard & Shepard, of Allison, for appellants.

Uhlenhopp & Uhlenhopp, of Hampton, for appellee.

MILLER Justice.

Plaintiff's petition asserts that on the afternoon of December 27, 1939she was riding in the front seat of an automobile, owned and operated by her husband, proceeding south on County Trunk Road "B" through the Town of Hansell, Iowa.Defendants operate a railroad line east and west through Hansell.While crossing said railroad tracks, the car in which plaintiff was riding was struck by a freight train.Plaintiff was injured.She asserts that the collision resulted from negligent operation of the train, to wit excessive speed, without timely warning.Defense was a general denial.The jury returned a verdict for plaintiff for $1,000.Motion for new trial was overruled and defendants appeal.

For the purpose of this appeal, the defendants in effect concede that there was sufficient evidence to sustain a finding by the jury that defendants were negligent in the operation of the train and that plaintiff was free from contributory negligence.They challenge the sufficiency of the evidence to sustain the verdict on the sole issue of proximate cause.They contend that the negligence of the train crew was not a proximate cause of the collision and assert that the trial court should have determined, as a matter of law, that the sole proximate cause of the collision was the conduct of plaintiff's husband.They contend that, with full knowledge of its approach in ample time to have avoided injury, her husband drove in front of the train.

Defendants rely upon the case of Wright v. Chicago, R. I. & P. R. Co., 222 Iowa 583, 588, 268 N.W. 915, 917, wherein we state: "Tysver heard the long blast of the whistle and the bell when he was at the center of the bridge and in time to stop his car and avoid the accident.He saw the train in time to have stopped the car and avoid the accident.One who has full knowledge of the presence of a train in ample time to have avoided the injury may not predicate proximate cause on the absence of signals.Having seen the train in time to have stopped the automobile, the negligence, if any, of the defendant in failing to give the statutory signals was not a proximate cause of the accident.Frush v. Waterloo, C. F. & N. R. Co., 185 Iowa 156, 169 N.W. 360."

It is important to consider that, by defendant's concession that plaintiff was free from contributory negligence, it is conceded that the negligence, if any, of her husband cannot be imputed to her.If her husband and defendants' crew were both negligent and the negligence of both concurred in producing her injury, the negligence of defendants was a proximate cause of the injury which will warrant recovery herein.This is demonstrated by the language in the Wrightcase, supra, following that above quoted, wherein, in reversing a judgment entered following the sustaining of a motion for directed verdict for defendant, we state:

"We now turn to plaintiff's allegation that the defendant was negligent in operating the train at a speed of 50 miles an hour.The defendant concedes that, under the facts and circumstances of the case this specification of negligence was for the jury.

"The defendant claims that the negligence of Tysver was the sole proximate cause of the death of Shattuck irrespective of negligence on the part of defendant.

"The jury might have found that defendant was negligent in operating its train at 50 miles an hour.If it did so find, there would be two concurrent acts of negligence co-operating at the time of the collision to produce the result. * * *

"Assuming that the jury would have found that the defendant was negligent in operating its train at 50 miles an hour, under the record we hold that the negligence of Tysver was not an intervening, sole proximate cause of the accident, superseding the negligence of the defendant.Dedina v. Chicago, M., St. P. & P. R. Co., 220 Iowa 1336, 264 N.W. 566.For a general discussion of the question of proximate cause and concurrent negligence, seeParmenter v. City of Marion, 113 Iowa 297, 85 N.W. 90.

"This specification of negligence should have been submitted to the jury."

Defendants' first assignment of error challenges the court's ruling on their motion for directed verdict, wherein they questioned the sufficiency of the evidence on the issue of proximate cause.Pursuant to the observations heretofore made, we find no merit in the contention.

As plaintiff's husband proceeded south across defendants' right of way, it was necessary to cross three sets of tracks.The view to the west was obstructed by a grain elevator and other buildings.Her husband testified "The elevator is three or four feet north of the first track, which is a switch track.The switch track is about 30 feet from the middle track and 50 feet from the third or main line track.As we came onto the first track I throwed a swift look to the east and then turned around and looked west.When we got on the switch track my wife said: 'There is a train.'I saw the train at that time and it was...