Strom v. Des Moines & Central Iowa Ry. Co.

• Citation: 82 N.W.2d 781,248 Iowa 1052
• Decision Date: 07 May 1957
• Docket Number: No. 49130,49130
• Parties: Mildred L. STROM, Appellant, v. DES MOINES AND CENTRAL IOWA RAILWAY COMPANY, Appellee.
• Court: United States State Supreme Court of Iowa

Page 781

82 N.W.2d 781

248 Iowa 1052

Mildred L. STROM, Appellant, v. DES MOINES AND CENTRAL IOWA RAILWAY COMPANY, Appellee.

No. 49130.

Supreme Court of Iowa.

May 7, 1957.

Rehearing Denied June 26, 1957.

Duffield & Pinegar, Des Moines, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee.

GARFIELD, Justice.

This is a law action to recover for serious personal injuries sustained by plaintiff Mrs. Strom, age 36, in a collision between the 1948 Ford automobile she was driving and a freight train of defendant. There was a jury verdict for plaintiff for $16,000. Upon return of the verdict the trial court on his own motion entered judgment for defendant, based on plaintiff's contributory negligence, notwithstanding the verdict.

Upon this appeal by plaintiff the contention most vigorously urged is that the issue of freedom from contributory negligence was one of fact for the jury, not of law for the court. This is so, it is said, because the view of the railroad was obstructed and there were diverting or complicating circumstances calculated to deceive or throw a motorist off his guard.

Of course it is our duty to consider the evidence in the light most favorable to plaintiff. Kinney v. Larsen, 239 Iowa 494, 496, 31 N.W.2d 635, 636; Sterlane v. Fleming, 236 Iowa 480, 488, 18 N.W.2d 159, 164.

The collision occurred about 11:30 p. m., May 6, 1955, at a crossing by defendant's track of state highway 141 (Merle Hay Road) in the village of Johnston, northwest of Des Moines. The highway there runs north and south, the railroad northwest and southeast. The angle northwest of the crossing between the highway and the track appears to be about 25 degrees. Plaintiff was alone driving north. The train was going southeast. The forward end of the diesel locomotive struck the Ford at the crossing the carried it about 250 feet southeast before it came to a stop.

For about 1,150 feet northwest from the crossing the track runs parallel to, and about 60 feet on the northeasterly side of, state highway 64. The highway on which plaintiff drove north is marked both 141 and 64 up to a point about 60 feet south of the railroad crossing, where 64 turns northwest and 141 continues straight on. Plaintiff approached this point, at about 25 to 30 miles per hour, behind about five other automobiles, rather close together, which turned northwest on 64. No cars were coming from the north on 141 but automobiles were traveling southeast on 64 toward its junction with 141. The headlights of one of these were on the high beam and this car reached the highway junction about as plaintiff left it to continue north on 141.

Plaintiff testified that as she approached the point where 64 left 141 her attention was directed toward the traffic of other automobiles, those ahead of her and those coming from the northwest on 64; she was looking toward the tracks when she left the highway junction; she looked to be sure there were no cars coming from the north; the car windows on the driver's side were open; her headlights were on low beam; she heard no whistle or bell; her hearing was good; she doesn't know what happened at the railroad crossing except the train hit her; she did not see or hear it before the collision but did see the headlight just before the collision.

There is a small cafe 10 to 12 feet high on the railroad right of way southwest of the track. A deputy sheriff says it is 55 to 60 feet west of the crossing. A civil engineer called by defendant measured 85 feet between the cafe and the pavement on 141 at the crossing. About this same distance northwest of the cafe is another one-story building on the right of way. There is a sign between the two buildings. The train ran on the northeast side of these buildings. Along the northeast side of highway 64 is a row of light poles fairly close together. There is space to park automobiles between the cafe and the crossing, southwest of the track. The deputy sheriff testifies photographs which show four motor vehicles parked in this space 'are fairly accurate representations of the area as it appeared May 6, 1955.' In this same space are two small round soft-drink signs, each at the top of a post.

Between the railroad crossing and the junction of 64 and 141, on the west side of 141, is a graveled shortcut between the two highways for south bound traffic on 141 about to turn northwest on 64 and southeast bound traffic on 64 about to turn north on 141. In the triangle formed by this shortcut, 141 and 64, is a stop sign about five feet high. Just west of highway 141, northeast of the railroad, is a large neon lighted sign, 30 to 35 feet high, of a lumber company. At the top center of the sign is a revolving light the flashes on and off.

Plaintiff was familiar with the crossing. She had driven over it twice the afternoon of that day and again a few minutes before the collision. She testifies, however, 'As far as I was concerned that was an obsolete track. I've never seen a train on it and I'd been up there lots of times and the condition of it gives you the feeling it is obsolete.' A witness who lived about three blocks from the crossing for nine months just before the collision says she crossed the track often and never saw a train there. A crossbar sign bearing the words 'Railroad Crossing' was in place along 141 both north and south of the crossing. The south sign needed paint. There was also a railroad sign some distance south of the south crossbars.

Actually defendant ran one freight train each way every 24 hours except Sunday. On rare occasions it ran an extra. The trains usually operated at night. There were no passenger trains. The trains ran between Des Moines and Granger or Perry northwest of Granger. There were 14 cars on the train in question.

We will later refer to some other evidence. The accompanying photograph, somewhat reduced in size from an exhibit offered by defendant, may help visualize the surroundings at the crossing in daylight.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

I. Under the peculiar facts of this case we think the issue of plaintiff's freedom from contributory negligence was one of fact for the jury, not of law for the court.

As plaintiff approached the point where Highway 64 turns northwest off Merle Hay Road it was natural and reasonable that her attention was mainly directed toward the motor vehicle traffic. Five automobiles (defendant's engineer says five to seven) turned left on 64 just ahead of plaintiff at this highway junction. She was sufficiently alert to be aware of the movement of these cars.

At least one automobile on 64 approached plaintiff at an angle of only 25 degrees from straight north. Its lights were on high beam and naturally interfered with her vision. It reached the junction just as plaintiff was leaving it. While these five or more cars were making left turns just ahead of her they not only occupied her attention but obstructed her view, at least in part, to the north and northwest. It cannot fairly be said plaintiff was contributorily negligent as a matter of law prior to the time she left the highway junction.

As soon as these automobiles completed their left turns and plaintiff had an unobstructed view to the north it was reasonable for her to look for traffic on 141 from that direction. The danger to her was very much greater from motor vehicles than from a single train approaching from the northwest at an unscheduled time during the 24 hours. Deputy Sheriff Peterson, a former state highway patrolman, who patrolled this area, testifies that even between 11:30 and 2:00 at night traffic at this point was heavy to moderate.

After making sure there were no cars approaching from the north plaintiff says she looked toward the railroad tracks, she saw no train, her hearing was good, she heard no whistle, bell or other audible warning of the train's approach. The surroundings were not such it may be said as a matter of law she must have seen the train if she looked. There were other obstructions to her view and other diverting circumstances.

The jury could properly find the brilliantly lighted lumber sign just northwest of the crossing was a diverting circumstance. As stated, a revoling light at the top of the sign flashed on and off, obviously to attract attention of passing motorists. Further, the bright lights of this large sign materially lessened the warning effect of the headlight on the locomotive.

Traveling at 25 miles per hour plaintiff covered the 60 feet between the highway junction and the railroad crossing in less than 1 2/3 seconds. If she was going 30 miles per hour she traveled the distance in less than 1 1/2 seconds. (Defendant's head brakeman if effect agrees with plaintiff's estimate of her speed. This was a 35 miles per hour zone.) Part of this time was reasonably taken up with looking for motor vehicle traffic. If plaintiff is to be held contributorily negligent as a matter of law it would seem to be due to her conduct during this brief interval of time and space.

We have at least twice approved the statement, 'To predicate neglgience on two seconds of time is in and of itself a monumental refinement.' Koob v. Schmolt, 241 Iowa 1294, 1299, 45 N.W.2d 216, 218; Menke v. Peterschmidt, 246 Iowa 722, 733, 69 N.W.2d 65, 72. In resistance to plaintiff's contention the last clear chance doctrine is applicable (considered in Division III hereof) defendant argues in effect, we think with reason, it did not have time to be negligent after plaintiff left the highway junction.

Certainly plaintiff is not to be held to a higher standard of care than defendant. In fact Pappas v. Evans, 242 Iowa 804, 814-815, 48 N.W.2d 298, 304-305, states:

'Contributory negligence of a plaintiff is not to be measured by the degree of care defendant owes him. Tate v. Canary Cottage, 302 Ky. 313, 194 S.W.2d 663, 665.

'We must not confuse plaintiff's duty of looking out for his own...