Stotelmeyer v. Chi., M. & St. P. R. Co.

• Decision Date: 09 July 1910
• Citation: 127 N.W. 205,148 Iowa 278
• Parties: STOTELMEYER v. CHICAGO, M. & ST. P. R. CO.
• Court: Iowa Supreme Court

148 Iowa 278

127 N.W. 205

STOTELMEYER

v.CHICAGO, M. & ST. P. R. CO.

Supreme Court of Iowa.

July 9, 1910.

Appeal from District Court, Appanoose County; C. W. Vermillion, Judge.

Action for damages for personal injuries alleged to have been sustained in a collision at a highway crossing. There was a verdict and judgment for plaintiff. Defendant appeals. Affirmed.F. S. Payne, J. C. Cook, and C. E. Vroman, for appellant.

Howell & Elgin, for appellee.

EVANS, J.

At the close of the evidence defendant moved for a directed verdict. This motion was denied by the trial court and error is assigned upon such ruling, and we give our first consideration to this question.

The accident involved in the inquiry occurred on February 17, 1907, at about 2 o'clock a. m., at a highway crossing across defendant's railway between Jerome and Seymour. The plaintiff and one Linn had procured a team and driver to take them from Jerome to Seymour. They were riding in a single-seated top buggy. The night was somewhat cold and the buggy top was up and inclosed by side curtains. The plaintiff and Linn occupied the seat proper and the driver, one Pollock, a boy 16 years of age sat upon their knees so that he occupied a position a little in front of them. They were driving east. The defendant's railway lay to the south of them before they reached the crossing, and extended in a general northeasterly direction. At the crossing in question the railway crossed the highway at an acute angle of about 20 degrees. For a distance of two or three hundred feet from the crossing the grade of the highway was about 6 feet lower than the grade of the railway; the highway rising quite abruptly to the grade of the railway in the last 25 feet west of the crossing. The center line of the highway entered the right of way space of the railway 185 feet west of such crossing. That is to say, at a point 185 feet west of the crossing, the center of the highway was 50 feet north of the center of the railway track. From this point the lateral approach of the highway to the railway was gradual. In the last 25 to 50 feet of the highway west of the crossing it was so close to the railway track that a train approaching from the southwest would come from behind a team driving east. To this extent the evidence is practically without dispute. The evidence also tended to show that along the south side of the highway there was a hedge which obstructed the view to the south, and this hedge extended east to a point about where the south line of the highway intersected the north line of the right of way. The plaintiff testified that at a point about 150 or 200 feet west of the crossing they stopped the team, and that he and the driver looked in both directions for a train and saw none; that this occupied about two minutes' time; that at 50 or 60 feet from the crossing they stopped again and looked likewise and failed to see any train; that they were driving on a walk; that the road at this point was a narrow embankment 12 or 14 feet wide, with the railway to the right of them and a ditch to the left of them which prevented any escape by turning around in case of emergency; that when they were about 25 feet from the crossing, the light of the approaching train suddenly streamed upon them; that the driver tried to stop his team, but it became unmanageable and rushed forward; that a collision thereby occurred which resulted in the killing of the driver and one of the horses, and in an injury to the plaintiff who was carried upon some part of the locomotive for a distance of 650 feet.

Much testimony was introduced on behalf of plaintiff to the effect that the hedge referred to was such an obstruction to the view that a train could not be seen from the highway until within a very short distance from the crossing. On the other hand, the defendant put in evidence certain photographs and plats and certain measurements tending to show that from any point 215 feet or less on the highway west of the crossing, a clear view could be had of the railway track for a distance of from 1,000 to 2,000 feet. It is argued that this evidence is conclusive, and that the court should accept it as such, and that the testimony on behalf of plaintiff should be disregarded in so far as it appears to contradict this evidence on behalf of defendant. It is upon this theory that the defendant contends for its right to a directed verdict. There are several reasons why the defendant's position is not tenable. We have examined the photographs, and they do not impress us as at all conclusive in support of the defendant's theory. It is a matter of common knowledge that a photograph is not always true in its perspective and does not necessarily present distances nor angles as they are. Nor does it always present the relative size or relation of objects at varying distances. This is illustrated by an examination of the three photographs introduced in evidence by the defendant, which present to the eye a somewhat conflicting appearance of the same topographic view. While, therefore, a photograph has its proper uses and is a great aid in arriving at the truth, it may also have its own unavoidable deceptions. It is a matter of common observation that the photographs introduced in evidence by opposite parties sometimes present as great apparent conflict as the testimony of opposing witnesses. The most, therefore, that can be said for photographic evidence is that in any given case it must be considered in the light of all the evidence, and with due regard to its natural limitations.

The measurements and plats introduced by the defendant tend to show that at a point 230 feet west of the center of the crossing the railway track would be visible to a person on the highway for a distance of less than 600 feet west of the crossing. This latter distance of view of the track would diminish as the distance from the crossing to the point of view on the highway was increased. It appears that the plaintiff, from any point of the highway within 200 feet of the crossing, could have seen the train 1,000 feet or more southwest of the crossing, and it is argued that he was therefore necessarily guilty of contributory negligence in failing to discover the train before reaching the point of collision. It is conceded that the train was going at a very high rate of speed, estimated by defendant's witnesses at 35 to 40 miles an hour. It came down a descending grade, there being a fall of 4 feet in the 1,140 feet of track next west of the crossing. Just west of the crossing there was a comparatively sharp curve in the track bearing more to the south of west. Assuming the truth of plaintiff's testimony that at 50 or 60 feet from the crossing they did stop and look and listen for a train in both directions, and that this stop occupied one minute or more, it does not follow that they must have seen the approaching train at...