Tegtmeyer v. Byram

• Decision Date: 13 December 1927
• Docket Number: 38307
• Citation: 216 N.W. 613,204 Iowa 1169
• Parties: WILLIAM TEGTMEYER, Administrator, Appellant, v. H. E. BYRAM et al., Appellees
• Court: Iowa Supreme Court

216 N.W. 613

204 Iowa 1169

WILLIAM TEGTMEYER, Administrator, Appellant, v. H. E. BYRAM et al., Appellees

No. 38307

Supreme Court of Iowa, Des Moines

December 13, 1927

Appeal from Hancock District Court.--J. J. CLARK, Judge.

Action for negligently causing the death of plaintiff's intestate in a railroad crossing accident. Judgment on directed verdict for defendants. Plaintiff appeals.

Affirmed.

J. E Williams and W. G. Henke, for appellant.

Wichman & Hastings and Hughes, Taylor & O'Brien, for appellees.

MORLING J. EVANS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ concur.

OPINION

MORLING, J.

There are the two usual questions in the case: First, whether defendant was negligent; second, whether deceased was negligent. The accident occurred about 8 A. M., August 10, 1925, at a highway crossing some 600 or 800 feet west of the built-up portion of Hutchins, a hamlet of 25 inhabitants. The defendant's line of railroad runs east and west, north of such built-up portion. South of the railroad, and 50 to 200 feet from it, is a paved rural east and west highway. Proceeding westwardly from the buildings making up Hutchins, this highway gradually approaches the railroad, and at a point 125 feet south-eastwardly from the crossing, takes a more definite curve, crossing the railroad in a northwestwardly direction at an angle of about 45 degrees. The crossing is over a single main-line track. A few feet east of the crossing is a switch for a passing track, which branches off to the south, and proceeds eastwardly, paralleling the main track for a half mile or more. 150 feet east of the crossing, a house track branches south from the passing track, and proceeds eastwardly, paralleling the other two tracks. At the time of the accident, there was upon this house track, 400 feet east of the crossing, a box car. This was the most west-wardly obstruction to the traveler's vision of the tracks. Immediately eastwardly of the box car, and south of the house track, was a corncrib, 48 feet long. 150 feet east of the corncrib was an elevator. This was also on the south side of the house track. These were the only obstructions to the vision of the traveler proceeding westwardly toward the crossing that are material to this controversy.

Deceased was traveling westwardly through Hutchins to the crossing. The evidence is that, as she arrived at a point 100 feet from the crossing, she would have an unobstructed view of 682 feet of the track east. When she arrived at a point 75 feet from the crossing, she would have an unobstructed view of 935 feet of the track. At 50 feet from the crossing, she would have such a view of 1,500 feet of track. As she drew near the crossing, at about 8 A. M., the defendant's regular passenger train from the east was approaching, making no stop at Hutchins. It was about 2 minutes late. Its speed, as estimated by defendants' witnesses, was 45 or 50 miles per hour. The trainmen say, 35 or 40 miles per hour. The station building was 890 feet east of the crossing, on the north side of the main track. The whistling post for the crossing was 376 feet east of the station, 1,266 feet east of the crossing. There is dispute in argument as to whether the whistle was sounded either for the station or at the whistling post for the crossing, or whether the bell was rung, plaintiff contending for the negative.

In our view of the question of contributory negligence, we need not be detained with a consideration of the question of defendant's negligence.

Decedent was alone, in a left-hand-drive inclosed car, which the evidence shows was in excellent condition, and the brakes of which "were in fine shape." She was 18 years old, an experienced and good driver, and familiar with the crossing. Her hearing and eyesight were good. The day was clear and still. Decedent was first observed in the vicinity of the elevator, about 650 feet from the crossing, driving westwardly at 15 or 18 miles per hour. She was also observed as she neared the crossing. All of the witnesses say that the whistle of the approaching train was sounded when the engine was at the corncrib, or about the depot, the corncrib being substantially 450 feet east of the crossing. It is true that the engineer's testimony is somewhat confusing, but it shows that he sounded the whistle twice between the elevator and the crossing, the last one a continuous blast until the crossing was reached. He does not say he did not whistle at the corncrib. He says:

"Between the corncrib and the elevator and the crossing, I gave one long blast of the whistle. That whistle was for three or four car lengths. It was wide open until I passed the crossing. The occasion of that whistle was, my fireman said there was a car coming. I sounded the whistle again. * * * I think possibly I was close to two car lengths from the crossing when my fireman said there was a car coming. We were past the depot, way down near the crossing. I would not give any definite distance from the crossing,--we were not looking for distances,--it might have been anywheres from 120 feet--along in there. I got my whistle and the brake set before I got to the crossing."

Plaintiff's witness Weiland was in the dump of the elevator, holding his horses, having a view of the train westwardly from elevator. He says, "The engine was right opposite the corncrib when it whistled,--that is, on the north side." Plaintiff's witness Mrs. Thompson says:

"I heard the train whistle. I think it was around the depot, as near as I can tell, at the time it whistled. From the time I heard the whistle to the time it crossed the crossing was just an instant, you might say, most,--that is the way it seemed to me."

Plaintiff's witness Miller testified:

"I first saw the train when it was right in front of me, between the elevator and corncrib. I heard the whistle,--in my estimation, it was between the corncrib and the elevator when I heard the whistle. * * * I would say it did not stop whistling until it went across the crossing."

Defendants' witness Boyson testified:

"When I saw the train, it just come past the elevator. It started to blow the whistle just as the engine passed the elevator. * * * I saw it when it was by the corncrib. I heard it whistle, real shrill,--could hear it plainly; then it continued to whistle, clear to the crossing."

We turn to the matter of decedent's opportunity to see the approaching train. Plaintiff's contention, in brief, is that, with the train going at 50 miles per hour, and the automobile at 6 miles, the driver of the automobile, at 90 feet south of the crossing, could see east along the track for about 733 feet, at which time the train would be 750 feet from the crossing; that decedent could then have reasoned that, as she was then only 90 feet from the crossing, and there was no train within 733 feet, she would have ample time to get over; that it must be presumed that she listened,...