Rosenberg v. Des Moines Ry. Co.

• Decision Date: 27 October 1931
• Docket Number: No. 40629.,40629.
• Parties: ROSENBERG v. DES MOINES RY. CO.
• Court: Iowa Supreme Court

213 Iowa 152

238 N.W. 703

ROSENBERG

v.DES MOINES RY. CO.

No. 40629.

Supreme Court of Iowa.

Oct. 27, 1931.

Appeal from Municipal Court of Des Moines; Ralph L. Powers, Judge.

This was a proceeding by the plaintiff to recover from the defendant damages caused by a collision between a Chevrolet coach and an interurban car. The plaintiff was driving the automobile on a private crossing over the interurban railway double tracks when the accident occurred. There was a trial to a jury, and, at the close of all the evidence, the municipal court directed a verdict in the defendant's favor. From this ruling, the plaintiff appeals.

Affirmed.

G. F. Brooks, of Des Moines, for appellant.

Corwin R. Bennett, of Des Moines, for appellee.

KINDIG, J.

On September 18, 1929, about six o'clock in the morning, Byron F. Rosenberg, the plaintiff-appellant, when going to his work at the Des Moines Clay Company, endeavored to drive his Chevrolet four-door coach from his home southward over the double tracks of the Des Moines Railway Company, defendant-appellee..... As the appellant was thus proceeding across the south or second track, an interurban car struck the Chevrolet coach and inflicted upon appellant the physical injuries, and did the damage to the automobile of which complaint is here made. These double tracks (the one herein designated as the first, or north, and the other the second, or south) were maintained by the appellee railway company between the Des Moines business district northwestward to Urbandale, a village outside of the Des Moines city limits.

At the point of collision, the railway tracks were maintained on appellee's private right of way. Appellant, at the time in question, lived near this private right of way and had access to a public highway by using a private road over appellee's right of way. The understanding of the manner in which the private road ran from appellant's house to the railway tracks may be aided by the photograph here inserted.

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It is the claim of appellant that on the morning in question, he drove his Chevrolet coach from the house southward over the private road down to the bridge shown in the above photograph. When in the center of this bridge, appellant claims to have made observation for possible on-coming cars or trains that might be traveling over either railroad track. While approaching the double tracks from his home, the first was the north or the outbound track, and the second the south or inbound track. From the center of the bridge, where the observation is claimed to have been made, appellant said he could see a great distance down the outbound track, in the direction of the Des Moines business district, and knew such track was clear. In the other direction (toward Urbandale), however, the appellant declares he could only see a distance of 300 feet, because of a bank near the bridge and a curve in the tracks. With his line of vision thus limited, appellant maintains that he looked in that direction for an incoming car, but saw none. Then he shifted his automobile into intermediate gear, and proceeded slowly across the tracks. He was operating his car at a speed of about three miles per hour and could have stopped within a distance of four feet. Upon arriving at the first rail of the second track, appellant saw the interurban car, and proceeded a foot or two farther when he was struck, as before explained.

According to appellant, the appellee was negligent in three respects, as follows: First the interurban car was propelled at an excessive rate of speed; second, the motorman failed to keep a proper outlook; and, third, the motorman did not have the interurban car under control. Hence, appellant urges that the municipal court erred in directing a verdict in defendant's favor.

[1] Appellee, on the other hand, denies its own negligence, but argues that even if there were such negligence, nevertheless appellant's contributory negligence is sufficient to bar a recovery. Consequently, appellee insists that the municipal court's action is fully justified in the record.

One witness for the appellant testified that appellee's car was traveling 45 miles per hour when approaching the private right of way under consideration. Although this testimony is somewhat contradicted by previous statements made by the witness and is otherwise minimized and doubtful, nevertheless, for the purposes of this discussion, we will assume that the appellee's car was operated at a negligent rate of speed. There is no testimony sustaining appellant's claim that the motorman did not keep a proper outlook. Moreover, if the interurban car were not under control at the time in question, it was because the same traveled at an excessive rate of speed. No contention is made by appellant under the last clear chance rule. Therefore, the deciding question is narrowed to one of contributory negligence. Has appellant shown himself free therefrom? A review of the record compels a negative answer.

“The presence or absence of contributory negligence, generally speaking, is peculiarly a question for the jury. * * * Moreover, it is to be remembered that there are some instances where it is the province of the court, and not the jury, to judge whether or not the contributory negligence is such as to bar a recovery.” Murphy v. Iowa Electric Co., 206 Iowa, 567, reading on page 571, 220 N. W. 360, 362.

“If there is a conflict in the evidence as to what the person accused of contributory negligence did or did not do, the question is then one for the jury.” Murphy v. Iowa Electric Co. (206 Iowa, 567), reading on page 572, 220 N. W. 360, 362.

[2] For the purposes of this discussion, appellant's own version of his actions is considered to be the truth. Accordingly, under this theory there is no conflict in the evidence concerning what appellant did or did not do. Necessarily, then, no jury question can arise on this proposition. But a jury question may arise if men might fairly and reasonably differ concerning the result of appellant's actions.

“* * * Even though it is known what was done by (the) individual * * * yet, if his conduct is such that there may fairly be different opinions with respect to it, and one man honestly and reasonably says it was in accord with ordinary prudence, while another just as sincerely and with equal reason contends it was not, then there is a jury question.” Murphy v. Iowa Electric Co. (206 Iowa, 567), reading on page 572, 220 N. W. 360, 362, supra. Measured by this test, did the municipal court properly hold, as a matter of law, that appellant was guilty of contributory negligence? That is the next problem.

Another photograph, here inserted, will reveal to the reader the position of the bridge, the private way across the railroad property, each of the railway tracks, and the claimed obstruction in appellant's line of vision.

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To further aid the understanding and reveal the surrounding circumstances, there is here set out a blue print, which, at the right, indicates the private road as a driveway.

IMAGE

As before suggested, appellant testified that from the middle of the little bridge he could see down the inbound track (the second track), over which cars run from Urbandale to Des Moines, a distance of only 300 feet. The engineer who made the blue print, however, asserts that from the middle of that bridge an observer can see in the direction named as far as 500 feet. This witness, however, and appellant disagree concerning obscuring weeds on the bank at one side of the private way as an approach is made from the latter's house to the bridge. Such dispute is probably of the nature to present a jury question. So the discussion will proceed on the theory that appellant could see only 300 feet from the center of the bridge. Obviously, then, he did not have a view of the tracks beyond 300 feet in the Urbandale direction, but appellant understood that. Yet, from the time he left the center of the bridge until he reached the first rail of the second or inbound track, he made no further observation of any kind, although it was daylight. From the center of the bridge to the first rail of said second track is a distance of 25 1/2 feet. It is not claimed that appellant listened at any time either on the bridge or during the journey to the second railroad track, where the collision occurred.

[3] An endeavor is made to excuse appellant from making further observations, or otherwise protecting himself, on the theory that it was necessary for him, because of the cool morning, to work the choke on the automobile. Much reliance is here placed upon Butterfield v. Chicago, R. I. & P. R. Co., 193 Iowa, 323, 185 N. W. 151;Long v. Railway & Light Co., 162 Iowa, 11, 142 N. W. 1008; In re Estate of Kern, 141 Iowa, 620, 118 N. W. 451;Remillard v. Sioux City Traction Co., 138 Iowa, 565, 115 N. W. 900;Watson v. Boone Electric Co., 163 Iowa, 316, 144 N. W. 350;Dow v. Des Moines City Railway Co., 148 Iowa, 429, 126 N. W. 918;Powers v. Des Moines City Railway Co., 143 Iowa, 427, 121 N. W. 1095;Ward v. Marshalltown Light, Power & Ry. Co., 132 Iowa, 578, 108 N. W. 323, and other cases. Each of the foregoing cases easily can be distinguished from the facts in the present controversy. For example, in Butterfield v. Chicago, R. I. & P. R. Co. (193 Iowa, 323, 185 N. W. 151), supra, the collision occurred between a train and a motor vehicle. There was an obstruction interfering with the driver's view of the train. Another vehicle proceeded across the railroad tracks immediately in front of the man injured. His attention was thereby diverted. Apparently the train gave no warning signal of its approach. Two men were in the vehicle struck. Testimony was introduced to the effect that both looked for the train. According to the testimony, the men in the preceding vehicle first looked in the direction from which the train was coming and then looked forward, thereby, to some extent at least, throwing the men following...