Roberts v. Chicago & N.W. Ry. Co.

• Decision Date: 06 February 1962
• Docket Number: No. 50514,50514
• Citation: 113 N.W.2d 269,253 Iowa 646
• Parties: Will ROBERTS, Appellee, v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 269

113 N.W.2d 269

253 Iowa 646

Will ROBERTS, Appellee, v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY, Appellant.

No. 50514.

Supreme Court of Iowa.

Feb. 6, 1962.

Sifford & Wadden, Sioux City, Davis, Huebner, Johnson, Burt & Fulton, Des Moines, for appellant.

Hess, Pendleton & Thompson, Sioux City, for appellee.

PETERSON, Justice.

This is an action for $392.86 damages, claimed by plaintiff as the result of a collision between his automobile and a switch engine of defendant.

The jury returned a verdict for the amount claimed by plaintiff. Defendant appealed.

On November 11, 1959, at about 7 P.M., plaintiff was driving a Plymouth car west on 3rd Street in Sioux City. Third Street is a brick paved street. There were eight switch tracks crossing the street before plaintiff reached the track used by defendant. It had snowed heavily during the afternoon and the street was covered with a substantial covering of snow, and was very slippery. It was snowing hard at the time of the collision. Plaintiff testified he was driving along the street at about five miles per hour and was carefully looking to the north and to the south in view of the lack of visibility by reason of the hard snowstorm. He heard no train bell. In fact, the engineer on the switch engine testified later that the bell was either broken or frozen and was not operating. The court properly instructed the jury 'That it is the law of the State of Iowa that in a city, at a road crossing, it is the duty of the defendant to ring a bell of the locomotive continously from a point at least sixty rods before the crossing, and the failure to do so constitutes negligence.'

Plaintiff testified he heard no whistle until he was approaching the switch track on which defendant's switch engine, with fifteen cars attached, was moving in a northerly direction. He suddenly heard a loud blast from a whistle. He immediately applied his brakes, but he was only ten feet from the engine moving from the south over on the street. It was impossible for him to stop on the snow and slippery paving and he collided with the engine at about its center. The engine moved him along a short distance and then the train stopped. He was moving so slowly that he was not in any manner hurt, but the car was damaged in the amount above stated.

Mr. Heilman was the engineer on the switch engine. He testified his train had been moving along at between four and five miles per hour. There were three other employees in the switch engine cab with him; the fireman and two switchmen. He testified the fireman called his attention to the fact that an automobile was approaching from the east. The fireman testified it was about two hundred feet away when he and the engineer looked as it. Some of the other witnesses said it was from six to seven car lengths away which would be about one hundred twenty-five feet. Mr. Heilman then stated that immediately after his first glance at the car driving west on 3rd Street he stopped looking at it. Thereafter he only looked down 3rd Street to the west. Mr. Heilman testified he had blown the whistle some time before he reached the street crossing.

The fireman stated he watched the car coming west on 3rd Street and as it came about forty feet from the crossing he noticed the rear end of the car weaving on the snow packed street and exclaimed 'He is going to hit us.' Mr. Heilman testified that when such statement was made he immediately gave a loud whistle blast. This was apparently the blast plaintiff heard. Mr. Heilman testified he immediately put on his emergency brakes and stopped his train in about 35 feet. The engine was, therefore, stopped on the traveled portion of 3rd Street. On cross-examination Mr. Heilman was asked

'Q. And what is your duty with respect to lookout? A. I looked toward the west or both directions.'

Appellant raises two alleged errors. 1. The court erred in overruling the motion to withdraw from the consideration of the jury the issue of lookout. 2. The court erred in giving Instruction 13 as it described the issue of lookout.

I. Plaintiff had alleged failure of proper lookout in his petition. When he rested his case, defendant moved to strike the allegation, contending that no evidence had been offered as to the question of lookout. The motion was sustained, but the general motion for directed verdict was overruled.

Defendant then offered its evidence. A large part of defendant's evidence pertained to the question of lookout. When defendant rested, plaintiff moved for permission to amend his petition alleging improper lookout on the part of defendant, to conform to the evidence which had been offered. The court sustained the motion and plaintiff amended his petition accordingly.

We do not agree with defendant that failure to withdraw the issue of lookout was error. There was sufficient evidence offered by defendant's witnesses so that the trial court was justified in submitting to the jury the issue of proper lookout.

In case of Ehrhardt v. Ruan Transport Corporation, 245 Iowa 193, 61 N.W.2d 696, this court defined lookout as follows: 'Proper lookout means more than to look straight ahead, or more than seeing the object; that it implies being watchful of the movements of his own vehicle as well as the movements of the thing seen; that it involves the care, prudence, watchfulness and attention of an ordinarily careful and prudent person under the circumstances.'

We considered the question of lookout in Mueller v. Roben, 248 Iowa 699, 82 N.W.2d 98. We defined lookout as follows: 'that watchfulness which a prudent and reasonable person must maintain for his own safety and the safety of others, taking into consideration the circumstances with which he is immediately concerned or confronted.' This was an automobile case, but the definition is pertinent.

In the railroad case of Southern Railway...