Simmons v. Chi., R. I. & P. Ry. Co.
| Decision Date | 06 February 1934 |
| Docket Number | No. 42365.,42365. |
| Citation | 252 N.W. 516,217 Iowa 1277 |
| Court | Iowa Supreme Court |
| Parties | SIMMONS v. CHICAGO, R. I. & P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Lee County; John M. Rankin, Judge.
This is an action at law, commenced by the plaintiff, as administrator of the Floyd H. Simmons' estate, to recover from the defendant railway company for the alleged wrongful death of the said Floyd H. Simmons. It is claimed that the railway company negligently operated a gas-electric motorcar train against the light truck driven by the said Floyd H. Simmons at a highway crossing. The cause was submitted to a jury, which returned a verdict for the plaintiff. A judgment was entered accordingly, and the defendant appeals.
Reversed.
G. L. Norman, of Keokuk, and J. G. Gamble and A. B. Howland, both of Des Moines, for appellant.
E. W. McManus, of Keokuk, for appellee.
On April 29, 1932, at about 5:20 o'clock in the afternoon, a gas-electric motorcar train operated by the defendant-appellant, the Chicago, Rock Island & Pacific Railway Company, collided with a light Chevrolet truck driven by Floyd H. Simmons at a highway crossing southeast of Farmington, Iowa. This crossing is just beyond the town limits. The appellant's right of way extends through the town of Farmington in a northwesterly and southeasterly direction. Highway No. 3, a paved thoroughfare, extends across the railway tracks and right of way in an easterlyand westerly direction immediately south of Farmington.
At the time of the collision, the motorcar train was traveling from Farmington southward over Highway No. 3, and Floyd H. Simmons was driving the Chevrolet truck westward on Highway No. 3 across the railway tracks. There was a collision between the truck and the train, in which Floyd H. Simmons was killed. Harley E. Simmons was then appointed administrator for the estate of Floyd H. Simmons, and, as such, on August 31, 1932, commenced the present action, as plaintiff, against the railway company to recover damages for the wrongful death of Floyd H. Simmons. That action resulted in a judgment against the appellant railway company and in favor of the plaintiff-appellee. Consequently the appellant appeals.
As a basis for recovering damages from the appellant, the appellee alleged several grounds of negligence in his petition. The district court, however, submitted only three of those grounds of negligence to the jury. They were: First, that the appellant operated its motor train at a negligent rate of speed “in view of the nature of the crossing and obstructions to the view and hearing”; second, that the appellant failed to give statutory signals and warnings; and, third, that the employees in charge of the appellant's motor train failed to keep a proper lookout.
Our discussion here will relate to the third ground of negligence above mentioned. Because a new trial is necessary, we refrain from discussing the sufficiency of the evidence on the appellant's negligence, as well as the record relating to the contributory negligence of the appellee's intestate. Error is assigned by the appellant upon the theory that there was no evidence in the record which justified the submission to the jury of the third ground of negligence above listed, to wit, that the appellant, through its employees, failed to keep a proper lookout.
[1] Of course, as a general proposition of law, it is true that there is a duty imposed upon the appellant, while operating its trains, to keep a proper lookout through its employees. Hartman v. Chicago Great Western Railway Co., 132 Iowa, 582, 110 N. W. 10;Ressler v. Wabash Railway Co., 152 Iowa, 449, 132 N. W. 827;Thomas v. Chicago, Milwaukee & St. Paul Railway Co., 103 Iowa, 649, 72 N. W. 783, 39 L. R. A. 399;Monson v. Chicago, R. I. & P. Railway Co., 181 Iowa, 1354, 159 N. W. 679;Glanville v. Chicago, Rock Island & Pacific Ry. Co., 196 Iowa, 456, 193 N. W. 548;Anderson v. United States Railway Administration et al., 197 Iowa, 1, 196 N. W. 584. These cases, however, do not apply to the record in the case at bar. Here the evidence reveals that the appellant, through its engineer, kept a constant lookout from the time the motor train left the depot until the collision. There is no testimony upon this subject except that given by the engineer. He testified that as he left the station at Farmington he had a view of the crossing for a distance of approximately 400 feet on the right side of the motor train. On the opposite, or left, side of the motor train, the view was less. The engineer said he could not see the crossing from that side until he arrived at a point approximately 300 feet from it.
As the engineer was operating his train southward from the depot, he says that he constantly kept a lookout. According to the engineer, he did not see the light truck operated by Floyd H. Simmons until it was approaching at a point about 100 feet east of the crossing. At that time, the motor train, according to the engineer, was also 100 feet from the crossing. When the motor train was approximately 500 or 600 feet from the crossing, the engineer observed another automobile on the west side of the railroad track, traveling eastward. This automobile was carefully observed by the engineer. Before crossing the railroad tracks, the operator of that automobile stopped and looked at the on-coming train. He then started his automobile and drove over the track when the train was approximately 300 feet away. After the automobile thus proceeded on the highway across the railroad crossing, it then went eastward in the direction from which Floyd H. Simmons was driving the light Chevrolet truck. In fact, the automobile which came from the west passed the Simmons' car several feet east of the railroad crossing.
Immediately after the engineer observed that the automobile which came from the west was safely over the railroad crossing, he then looked to the east, or left, and saw the light truck in which Simmons was riding. The Simmons truck, when first observed, by the engineer, was 100 feet east of the crossing. According to the evidence, the Simmons truck was traveling at a rate of speed ranging from 25 to 30 miles per hour. During this time, the train, according to the appellee's evidence, was traveling from 35 to 40 miles per hour. It was said by the engineer that he could stop the train at the time in a distance of approximately 400 feet. When estimating the speed of the motor train, the engineer fixed the rate at 30 miles per hour. But whether the motor train was traveling at the rate of 30 miles per hour, as claimed by the engineer, or at the higher rate of from 35 to 40 miles per hour, as claimed by the...
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