Selensky v. Chicago Great Western R. Co.

• Decision Date: 10 April 1903
• Citation: 94 N.W. 272,120 Iowa 113
• Parties: ELLA SELENSKY v. THE CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

94 N.W. 272

120 Iowa 113

ELLA SELENSKY v. THE CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

April 10, 1903

Appeal from Bremer District Court.--HON. CLIFFORD P. SMITH, Judge.

ACTION to recover damages for personal injuries received at a highway crossing as the result of a collision with defendant's train. Verdict and judgment for plaintiff. Defendant appeals.

Affirmed.

Long Hagerman & Farwell and Miller & Williams for appellant.

Sager & Sweet for appellee.

OPINION

MCCLAIN, J.

The collision occurred at a grade crossing. Plaintiff relied on evidence that the defendant's employes were negligent in the operation of the train, in that they failed to give the crossing signals as required by statute. For defendant it was contended that the crossing signals were given, and that plaintiff was not free from contributory negligence; having driven upon the crossing without taking proper precautions to ascertain whether a train was approaching.

The employes of defendant in charge of the train at the time of the accident, and other witnesses, testified to hearing the signals, while plaintiff and her husband, who was not with her in the conveyance, but was not far away from the crossing, and other witnesses who were in the neighborhood of the crossing at the time of the accident, testified that the crossing signal was not given, and that the first signal was the danger signal, when the engineer saw the plaintiff about to drive across the track. Counsel for appellant invoke a rule which has received countenance in some cases in this state and elsewhere, to the effect that as between positive evidence on the part of witnesses who are in a position to hear that a signal is given, and negative evidence on the part of other witnesses, similarly situated that they have heard no such signal, there is not a conflict in the evidence; the so-called negative evidence having no weight as against the positive evidence of those who testified that they actually heard the signal. But it appears in this case that the plaintiff was looking out for signals, realizing that the crossing was a dangerous one, and knowing that a train was due about that time; that her husband knew that plaintiff would reach the crossing about that time, and was also on the lookout for any indications of an approaching train; that another witness heard the signal of the train about two miles away, and then the danger signal, but did not hear any signal at the whistling post. Under the circumstances, we think that the testimony of witnesses who were thus in a situation to hear, and likely to have heard, a crossing signal, if one had been given, that they did not hear any such signal, cannot be entirely ignored and treated as of no weight because opposed to the testimony of witnesses who say that a signal was actually given, or that they heard such a signal given. Annaker v. Chicago, R. I. & P. R. Co., 81 Iowa 267, 47 N.W. 68; Lee v. Chicago R. I. & P. R. Co., 80 Iowa 172, 45 N.W. 739; McMarshall v. Chicago R. I. & P. R. Co., 80 Iowa 757, 45 N.W. 1065; Reed v. Chicago St. P., M. & O. R. Co., 74 Iowa 188, 37 N.W. 149. In the case of Payne v. Chicago & N.W. R. Co., 108 Iowa 188, 78 N.W. 813, it is said the fact that plaintiff and others did not hear the crossing whistle sound did not even create a conflict with positive evidence that the signals were given; but the facts in that case were different, for it appeared that the witnesses for plaintiff who testified they did not hear the crossing signal were not in a situation to hear, or were not noticing for the purpose of hearing such a signal. We cannot say in this case that there was no evidence as to defendant's negligence. Nor can we say that the question was not properly submitted to the jury.

The court was asked, in behalf of defendant, to instruct the jury that the testimony of witnesses that they did not hear the signals, or that such signals were not given, was negative evidence, entitled to less weight than the affirmative evidence of witnesses who testified that the signals were given, or that they heard them. This instruction was properly refused. As between two witnesses listening at the same time for a signal, the testimony of one that no signal was given is just as much affirmative evidence as the testimony of the other that it was given. As already indicated, the rule has no application as between witnesses having equal means and opportunity of observation, and giving the matter equal attention.

It is contended that plaintiff was, under the evidence, as matter of law, conclusively shown to be guilty of contributory negligence in going upon the track at a place of danger. It does appear that at one place, as she approached the railway crossing, she could have seen the train, and that at no place did she stop to look or listen, and that before she had become aware of the approach of the train she had driven on a slow trot towards the crossing, until she was too near to avoid the danger by stopping her horse. But it is not, as matter of law,...