Rosin v. Northwestern States Portland Cement Co.

• Decision Date: 08 February 1961
• Docket Number: No. 50175,50175
• Citation: 252 Iowa 564,107 N.W.2d 559
• Parties: Jerome ROSIN, Appellee, v. NORTHWESTERN STATES PORTLAND CEMENT COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 559

107 N.W.2d 559

252 Iowa 564

Jerome ROSIN, Appellee, v. NORTHWESTERN STATES PORTLAND CEMENT COMPANY, Appellant.

No. 50175.

Supreme Court of Iowa.

Feb. 8, 1961.

Westfall, Laird & Burington, Mason City, for appellant.

Breese & Cornwell, Mason City, for appellee.

PETERSON, Justice.

This is an action for damages for personal injuries and property loss sustained by plaintiff on August 13, 1957 when his automobile was run into by defendant's diesel locomotive at the edge of Mason City.

Plaintiff testified that as he traveled east on a country road he observed a railroad sign which caused him to be on the lookout for any train that might be approaching. He was driving on a new road. The rock base had been filled in, and an oil coating was placed on top of the base. Preparation was being made for the asphalt top. It had rained that morning. He was driving at from 40 to 45 miles an hour until he saw the train appear from behind brush and trees causing him to apply his brakes. Because of the slippery condition of the surfaced road he was unable to bring his car to a stop before coming upon the track and the locomotive struck the car about the center of its right side, pushing it 150 feet down the track without upsetting it. He testified that the next day he measured his skid marks which started some 176 feet from the track. He claimed that after he knew of the location of the railroad he looked constantly both north and south for a train, but neither saw nor heard one until it was too late to avoid the collision. When asked why he did not sooner see the train he said, 'There was no way I could really see it on account of the tall corn field and all the trees growing up in the corner of it.' He said he did everthing he could to avoid the accident and that it occurred, not because he was going too fast, but because he didn't have traction on the slippery road.

There was a cornfield south of the highway, the east fence of which was 212 feet west of the railroad track and trees and brush along the right of way were also an obstruction to the view of trains from the south.

The speed of the diesel, which was pulling five gondolas or dump trucks was approximately 20 to 25 miles an hour before the brakes were applied. The bell on the diesel was not rung, but one member of the train crew stated the whistle was blown 300 feet south of the crossing. Plaintiff denied hearing it. The automatic air brakes on the train had not been connected.

The gondolas were loaded with clay and weighed about 30 to 40 tons each. The clay was being hauled on defendant's private railroad to its Mason City cement plant.

The jury returned a verdict for $20,000. Trial court ordered reduction to $14,353 or a new trial would be granted. Remittitur was filed. Defendant appeals.

Appellant assigns seven errors, with several brief points under some alleged errors. The pertinent complaints and those needing attention can be considered under five alleged errors. 1. In permitting plaintiff to amend his petition by alleging specific grounds of negligence after the two-year statute of limitation had expired. 2. In failing to direct a verdict on account of plaintiff's contributory negligence. 3. In submitting Instruction No. 9 as to warning device at the crossing if the jury should find it more than ordinarily dangerous. 4. In giving confusing, misleading and inconsistent instructions. 5. The verdict was excessive.

I. Plaintiff in his petition alleged the defendant on or about August 13, 1957 negligently operated its railroad train over and across a highway in Corro Gordo county, which train collided with an automobile driven by the plaintiff upon said highway. In January, 1960 with leave of court, he filed a second amendment to his petition in which he alleged eight grounds of negligence, four of which were based upon statutory law, one on an ordinance and three on common law.

In substance the allegations in the amendment were that the defendant was negligent in failing to have its engine and cars equipped with efficient automatic or power brakes so the engineer could automatically control the train as provided by section 477.14 of the 1954 Code, I.C.A.; in failing to sound the whistle at least 60 rods from the crossing and ring the bell as provided by section 478.19; in failing to keep a lookout and to provide a flagman or some adequate warning device at the crossing.

The court submitted the statutory and one of the common-law specifications. Defendant charged the specific grounds of negligence alleged a new cause of action, which, so far as the personal injuries were concerned, was barred by the limitation statutes.

Section 614.1, 1954 Code, I.C.A., provides that actions founded on injuries to the person may be brought within two years after their causes accrue and not afterwards. Plaintiff was injured on August 13, 1957, filed his petition February 5, 1959 and his challenged amendment on January 16, 1960. The question is, did the amendment state a new and distinct cause of action which was barred by the statute? We hold it did not.

Rule 88, Rules of Civil Procedure, 58 I.C.A., provides, 'The court, in furtherance of justice, may allow later amendments, including those to conform to the proof and which do not substantially change the claim or defense.' Permission to file amendments is largely within the discretion of the trial court. Elson v. Nickles, 240 Iowa 292, 36 N.W.2d 343; Bashford v. Slater, 250 Iowa 857, 96 N.W.2d 904, and cases cited.

In Terpstra v. Schinkel, 235 Iowa 547, 552, 17 N.W.2d 106, 109, we quoted from Jarozewski v. Allen, 117 Iowa 632, 635, 91 N.W. 941, 942: 'It is too well settled to admit of the citation of authorities that under the practice prevailing in this state the allowance of amendments at almost any stage of a trial is the rule, and the refusal of such privilege is the exception.' A pleader is entitled to claim as many grounds of actionable negligence as flow from his pleaded statement of facts. Sutton v. Moreland, 214 Iowa 337, 242 N.W. 75.

An examination of the amendment discloses that it does not state a new or different cause of action from that alleged in the petition. Negligence was charged and the amendment merely supplied such details as would have been furnished had a motion for more specific statement been made and sustained.

'It is well settled in this state that the commencement of an action tolls the statute of limitations, and that the statute will not be available as a bar to any appropriate amendment which seeks to amplify or correct the original petition and to support the identical cause of action purported to be set forth therein.' Emeny v. Farmers' Elevator Co., 194 Iowa 282, 189 N.W. 720, 722; Taylor v. Taylor, 110 Iowa 207, 81 N.W. 472; Gordon v. Chicago, R. I. & P. R. Co., 129 Iowa 747, 106 N.W. 177; Cahill v. Illinois Central R. Co., 137 Iowa 577, 115 N.W. 216; Knight v. Moline, E. M. & W. R. Co., 160 Iowa 160, 140 N.W. 839; Hueston v. Preferred Acc. Ins. Co., 184 Iowa 408, 413, 168 N.W. 150; James v. Winifred Coal Co., 184 Iowa 619, 628, 169 N.W. 121.

'It is also true that a petition containing a general averment of negligence states a good cause of action, and, if unassailed by motion such as we have in the instant case, plaintiff would be entitled to introduce such evidence of specific acts of negligence as might tend to establish his case.' Gebhardt v. McQuillen, 230 Iowa 181, 297 N.W. 301, 303.

II. It is only in rare and exceptional cases that the question of contributory negligence is withdrawn from the jury and decided by the court as a matter of law. The evidence must be so clear that reasonable minds will not differ on the question of the presence of such negligence. From numerous decisions of this court we cite a few cases. Fitter v. Iowa Tel. Co., 143 Iowa 689, 121 N.W. 48; Toney v. Interstate Power Company, 180 Iowa 1362, 1378, 163 N.W. 394; Johnston v. Johnson, 225 Iowa 77, 83, 279 N.W. 139, 118 A.L.R. 233; Lawson v. Fordyce, 234 Iowa 632, 641, 12 N.W.2d 301, 306; Kinney v. Larson, 239 Iowa 494, 498, 31 N.W.2d 635; Leinen v. Boettger, 241 Iowa 910, 919, 44 N.W.2d 73; Thompson v. Waterloo, Cedar Falls & Northern R. Co., 243 Iowa 73, 50 N.W.2d 363; Strom v. Des Mones & Central Iowa Ry. Co., 248 Iowa 1052, 82 N.W.2d 781; Plumb v. Minneapolis & St. Louis Ry. Co., 249 Iowa 1187, 91 N.W.2d 380.

Plaintiff was moving toward a railroad crossing, and such a crossing is always a potential danger spot. There were obstructions to plaintiff's clear view of the track and train by trees, brush and tall corn. Like in so many railroad crossing cases, the questions of obstruction of view, and in this case unusual circumstances, enter into the situation. The trees and brush near the highway have since been cleared away. This is like the old familiar adage of locking the barn door after the horse is stolen. The unusual circumstance was the fact that because of the oil and rain plaintiff could not stop his car. If the road had been normal he could easily have stopped within 175 feet.

The question then is should he have known his car would become a sled? He was employed by the road building company. He did not work on the road building section of the work. He was a heavy equipment operator at the place where the road material was being mixed for the highway. His knowledge of the effect of the spreading of oil on the rock base, and the rain that morning was that of the ordinary motorist. Such motorist driving along a road of that type would normally feel that by applying the brakes his car could be stopped. Applying the well-known principles that we must look at the picture in the light most favorable to plaintiff; that unusual circumstances can be considered; and that obstructions to view should be taken into consideration, we can hardly say that as a matter of law plaintiff was guilty of contributory negligence.

As to the question of contributory negligence, outside of the...