Sterlane v. Fleming

• Decision Date: 03 April 1945
• Docket Number: 46596.
• Citation: 18 N.W.2d 159,236 Iowa 480
• Parties: STERLANE et al. v. FLEMING et al.
• Court: Iowa Supreme Court

18 N.W.2d 159

236 Iowa 480

STERLANE et al. v. FLEMING et al.

No. 46596.

Supreme Court of Iowa

April 3, 1945

Rehearing Denied June 22, 1945.

Dutcher Ries & Dutcher, of Iowa City, and J. G. Gamble and A. B Howland, both of Des Moines, for appellants.

D. C. Nolan and Swisher & Swisher, all of Iowa City, for appellees.

WENNERSTRUM Justice.

Plaintiffs sought recovery of damages by reason of claimed permanent injuries to Mae Sterlane and her husband, Jack Sterlane, and also for damages to the automobile of the husband, as the result of a highway crossing collision with one of defendants' trains. The record discloses that Jack Sterlane has assigned his claim for damages to Mae Sterlane and it is further shown that she has made a partial assignment of her own claim for damages to Charles DeLaChapelle, one of the plaintiffs in this action. The case was submitted to a jury for its consideration, which returned a verdict in favor of the plaintiffs. The defendants' motion for a new trial was overruled and they have appealed.

The collision, which resulted in the claimed injuries to the Sterlanes, occurred on November 11, 1942 about 4:30 o'clock in the afternoon. This accident happened at a crossing over the railway company's tracks approximately one-half mile west of the town of Homestead. The roadway, the existence of which is in dispute, turns off from U. S Highway Number 6 and proceeds in a north and west direction from the paved highway across the Rock Island right of way and tracks and to a fence and locked gate on the opposite side of the railroad right of way. The highway, at or near the point of the collision, parallels the railroad right of way. The highway and the railroad tracks at the point in question extend in a general easterly and westerly direction.

The roadway which leads from the pavement across the railroad tracks was originally part of the old River to River road. About the year 1920 this road in the vicinity of the point in question was changed from the north side of the railroad tracks to the south side. The record shows that on April 17, 1923 the Board of Supervisors of Iowa County adopted a resolution which provided for the vacation of 'the road lying north of The CRI&P railway in section 4 in Iowa Township.' The Amana Society owned all the land adjacent to the right of way on the north side of the railroad in section 4. It is shown that following the action of the Board of Supervisors a fence and gate were built on the north side of the railroad right of way, which gate was kept locked during the greater part of the time. It was locked at the time of the collision. It is further shown that after this gate was put in no maintenance work of any kind was performed either by the State Highway Commission, by the county or by any other authority upon the roadway extending from the paved highway to the crossing where the accident occurred. The crossing remained in its original location and was apparently maintained by the railway company. There is no record of any official action being taken by any authority to abandon the roadway between the railroad right of way and the paved highway to the south. The distance from the edge of the pavement to the south rail of the railroad tracks as one progressed along the claimed roadway was approximately 95 steps.

I. It is the contention of the appellants that the roadway which extended from the north side of the primary highway to the railroad right of way had been abandoned by the public authorities as a highway. This claimed abandonment is of importance because the evidence shows that the engineer on appellants' train that struck the Sterlane car failed to give the customary crossing whistle. When the fireman on appellants' engine involved in the collision observed the close proximity of the automobile to the track he directed the engineer to give an emergency whistle. This whistle was not a regular crossing whistle. There is no question that the highway on the north side of the railroad right of way had been vacated, but as previously stated, there is no record of official vacation of the highway south of the railroad right of way. The abandonment, if any, must be deduced from the fact of its non-use. In this respect the evidence shows that the roadway on the south side of the railroad tracks had been used since the roadway north of the railroad right of way was vacated as a means of access to the timber land on the north side of the right of way. The Amana Society had followed a practice of selling hunting and fishing privileges to individuals. The record shows that the roadway was used by these parties in traveling into the timber tract on the north side of the railroad property. This tract of land was also used by picnickers who used the roadway in question. In was also used by parties who drove into the north tract during the winter season for the purpose of hauling out ice and timber. The record also shows that this roadway was not worked and it was at time very rutty. It is further shown that it had never been fenced or in any way closed to travel by anyone.

In connection with the matter of claimed abandonment of this roadway in question we call attention to the statement made in 39 C.J.S., Highways,§ 130, p. 1066, where is is stated: 'It is presumed that a highway, once shown to exist, continues to exist. Abandonment is a fact which must be proved and the burden is on the one who asserts abandonment to prove it by clear and satisfactory evidence. * * *'

And in 39 C.J.S., Highways, § 131, p. 1067, in commenting on a stub end road it is stated: 'The abandonment of a part of a highway, regardless of the proportion it bears to the total length, does not constitute an abandonment of a portion still used, even though that portion is a cul-de-sac.'

In 25 Am.Jur. 365, section 47, the following statement is made: '* * * A highway once in existence is presumed to continue until it ceases to be such owing to abandonment or some other lawful cause, and the burden of showing a discontinuance, vacation, or abandonment is on the party who asserts it. * * *'

In the case of McCarl v. Clarke County, 167 Iowa 14, 20, 21, 148 N.W. 1015, 1018, this court made the following significant statement in connection with the question of the claimed abandonment of a roadway. 'A road may not be discontinued unless it is vacated, or possibly by abandonment. Abandonment would be a discontinuance in one sense. The question of abandonment of a road involves, not so much the question of time, though after a long time there may arise a presumption. But it involves more the question of intent and acts of the public. Nonuser is not enough, unless coupled with affirmative evidence of a clear determination to abandon. 37 Cyc. 195. Nor will obstructions or encroachments necessarily work an abandonment. 37 Cyc. 199. Nor does the failure to keep the road in repair necessarily work an abandonment. 37 Cyc. 197; Maire v. Kruse, 85 Wis. 302, 55 N.W. 389, 26 L.R.A. 449. * * *'

Further authorities that support out conclusions will be found in Davies v. Huebner, 45 Iowa 574, 576; Clare v. Wogan, 204 Iowa 1021, 1024, 1026, 216 N.W. 739; Robinson v. Board of Supervisors, 222 Iowa 663, 666, 667, 269 N.W. 921.

We have read the several cases which have been cited us by the appellants bearing upon the question of the abandonment of a roadway. In the cases which they have called to our attention we do not find that the facts are similar to the situation presented in the instant case and under the rules as previously set forth we are satisfied that the appellants have not proved the abandonment of the highway by such clear and satisfactory evidence as would justify the court in submitting the question of abandonment to the jury. Consequently we have concluded that the court was correct in its instruction that there had not been a vacation or abandonment of the highway and that it was the duty of appellants' train crew to give the statutory warning of the approach of the train. This conclusion is fortified by the fact that the railway company had continued to recognize this crossing as a highway crossing inasmuch as it had maintained the facilities for crossing the track at this point.

II. The appellant alleges as a further ground of error that the court in giving one of its instructions informed the jury, in part, 'that the presence of weeds or bushes or trees along the right of way of a railway near a crossing which obscure the view of the track by travelers approaching the crossing, is not in and of itself negligence on the part of the railway company, but the jury may consider such fact along with other matters in determining whether or not defendants were negligent.'

The appellants claim that this instruction, construed with the allegations of the petition as set out in the statement of the issues, along with the burden of proof instruction, resulted in conflicting statements. It is also contended that a consideration of these instructions together would result in an interpretation that the presence of weeds or other obstructions at a crossing could be the proximate cause of a collision. It is further contended that when the instructions are so considered that the court was in error in instructing as it did.

We do not feel that the contentions of the appellants can be sustained. Our interpretation of the instructions does not cause us to reach the conclusion that the trial court stated that the presence of the weeds could be the proximate cause of the collision. The instruction heretofore quoted definitely states that the presence of the weeds, brush or trees along the right of way of the railroad is not in itself negligence on the part of the railway company but might be considered along...