Smith v. Chicago, B. & Q.R. Co.
| Decision Date | 02 April 1940 |
| Docket Number | 45079. |
| Citation | 291 N.W. 417,227 Iowa 1404 |
| Parties | SMITH v. CHICAGO, B. & Q. R. CO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Clinton County; John E. Purcell, Judge.
Plaintiff commenced this action at law to recover damages from the defendant alleged to be due to the negligence of the defendant. The petition was in four counts. Defendant demurred to each count. The lower court sustained the demurrer. Plaintiff appealed. Opinion states the facts.
Reversed in part; affirmed in part.
E. E Hairgrove, of Jacksonville, Ill., and Homer I. Smith, and Miller & Claussen, all of Clinton, for appellant.
Frank W. Ellis and A. P. Barker, both of Clinton, and Clark, Pryor Hale & Plock, of Burlington, for appellee.
This case comes before us on the pleadings. A demurrer having been sustained to the petition, plaintiff has appealed.
The pertinent part of the petition is as follows:
" 5. That said highway number 80 runs due north and south in the vicinity of said crossing; that the defendant's track crosses said highway in a northwesterly and southeasterly direction; that defendant's car was headed in a northwesterly direction; that when the defendant's motor car was close to the highway or upon any part of said highway the beam of its headlight was directed away from plaintiff as she approached said crossing that said headlight was so constructed that its rays of light were projected forward and so that said headlight was invisible to plaintiff and said Housenga as they approached said crossing; that whatever light may have been reflected by particles of dust or vapor in the air in the beam of the headlight was not discernible to plaintiff or said Housenga against the illumination of the oil station above referred to; that the forward compartment of said car contained the motors for generating power to operate such car and the operating quarters for its operator and took in the forward one fourth of said car; that except for very faint lights over the operating controls of said car no lights were visible from the outside in such forward part of the defendant's car; that no lights farther to the rear on the defendant's car were visible to plaintiff or to said Housenga until the front end of said car was on the paved portion of the highway; that the defendant's car was not apparent or discernible to plaintiff or said Housenga until the front end of said car was driven over the east edge of such pavement.
6. That all of the facts and circumstances surrounding said crossing hereinbefore alleged which rendered said track and motor car indiscernible when approached from the south, as hereinbefore alleged, had been in existence for a long time prior to said collision and were well known to defendant and its employees, or would have been ascertained by the defendant and its employees by the exercise of reasonable care and diligence.
7. That the defendant and its employees had knowledge that by reason of the facts hereinbefore set forth it was impossible for travelers approaching said crossing from the south in automobiles to timely learn of the presence of trains or cars on defendant's track east of said highway, and caused such trains and cars to be stopped east of said highway in order that said highway might be reconnoitered by its employees before proceeding upon said highway while one of the train crew opened the gate at the railroad crossing; that the employees of the defendant in charge of the operation of its said car brought it to a stop near the easterly line of said public highway, at such a place that its presence was concealed from said Housenga and from plaintiff by the trees, shrubbery and brush on defendant's right of way; that the defendant's car remained stationary for several minutes while one of the train crew went across the highway for the purpose of opening the crossing gate; that without any warning being given by bell or whistle the defendant's car was driven onto the highway very slowly and at such a rate of speed that it could have been stopped practically instantly by the application of its brakes; that the defendant's employee in charge of the operation of said car knew that no audible signal had been given of the presence of said car at said crossing and knew, or in the exercise of reasonable care should have known, that said car was not discernible to said Housenga or to plaintiff until it had been driven so far that the front part of it was on the pavement; that said highway number 80 was straight and level for a distance of 2000 feet south of defendant's tracks; that said employee was stationed in the darkened compartment at the front end of said car, and, before said car was driven onto the pavement on said highway, saw, or in the exercise of reasonable care could have seen, the said Housenga's automobile approaching the said crossing and knew, or in the exercise of reasonable care, should have known, that the presence of the defendant's car was unknown to the driver and occupants of said automobile, and knew that if said car was driven upon said pavement said automobile could not be stopped before colliding with said car; that said employee failed to apply the brakes of said car and bring it to a stop but drove said car into the pathway of said automobile on the pavement.
8. That plaintiff was at all times immediately prior to and at the time of such collision in the exercise of due care and caution and that said collision and injuries were not caused by any want of care or negligence on the part of plaintiff.
9. That such collision and injuries were caused by the negligence of defendant in this:
(a) That without giving any warning of the presence of the defendant's car, or of their intention to operate said car, over said highway, the defendant's employees drove said car onto said highway and into the path of the automobile in which plaintiff was riding when such automobile was approaching so close to the defendant's tracks that the driver of such automobile could not stop it before colliding with defendant's car and when said automobile was so close to defendant's car and the danger of collision in time to enable the driver of the automobile to stop the automobile before colliding with defendant's car.
(b) That the employees of the defendant in charge of said motor car failed to look along the said highway to the south to ascertain whether said motor car could be driven onto the highway with reasonable safety before starting said car and driving it onto the highway."
It is alleged that the plaintiff was not familiar with the crossing and did not know of the presence of the railway motor. That as a direct result of such collision plaintiff sustained injuries which are described.
Defendant railroad company filed the following demurrer:
" 1. That the said petition does not state facts sufficient to entitle the plaintiff to the relief demanded for the reason that the said plaintiff's petition does not state a cause of action, in that no actionable ground of negligence is pleaded.
2. It is apparent on the face of the said plaintiff's petition that if plaintiff sustained the alleged injuries in the manner claimed from the facts alleged the presence of the train moving over the crossing was not the proximate cause of such injuries by reason of the driving of the automobile into the side of the train.
3. That said plaintiff's petition wholly fails to allege the failure of any duty imposed by law upon the defendant with respect to the protection of the plaintiff from injury or that the failure of the defendant to perform any such duty resulted in the plaintiff's injury.
4. That under the law the presence of the train on the track in question was adequate...
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