Thomson v. Stevens

• Decision Date: 02 November 1939
• Docket Number: No. 11340.,11340.
• Citation: 106 F.2d 739
• Parties: THOMSON v. STEVENS.
• Court: U.S. Court of Appeals — Eighth Circuit

106 F.2d 739 (1939)

THOMSON v. STEVENS.

No. 11340.

Circuit Court of Appeals, Eighth Circuit.

October 11, 1939.

Rehearing Denied November 2, 1939.

James C. Davis, Jr., of Des Moines, Iowa (A. A. McLaughlin and George E. Hise, both of Des Moines, Iowa, on the brief), for appellant.

John A. Senneff, Jr., of Mason City, Iowa (John A. Senneff, of Mason City, Iowa, on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment entered upon the verdict of a jury in a civil action brought by the Administratrix of the Estate of Herbert Stevens against the Trustee in Reorganization of the Chicago and North Western Railway Company, to recover damages for the death of Stevens, who was killed at Dumont, Iowa, at about 9:30 o'clock P. M. on January 28, 1936, as the result of a collision between the automobile in which he was riding as a guest passenger and a gondola freight car of the Railway Company which was standing upon the grade crossing at Dumont, where the tracks of the Railway Company intersect Highway Number 10, a paved and well-traveled highway. The parties will be designated as they were in the court below.

The case has been tried twice. The first trial resulted in a verdict for the plaintiff. There was an appeal by the defendant and a reversal upon the ground that, under the testimony of the driver of the automobile, a finding that the negligence of the defendant, if any, was a proximate cause of the collision and the death of the plaintiff's intestate, was not justified. See Megan v. Stevens, 8 Cir., 91 F.2d 419, 113 A.L.R. 992. Upon a retrial of the case, the plaintiff again prevailed. The testimony of the driver of the automobile differed in substantial respects from that which he gave upon the first trial. On the first trial his evidence was that he first saw the freight car when approximately 70 feet from it and in time to stop; that he put on his brakes at once, but that ice under the snow caused his automobile to skid into the gondola car. On the second trial, he testified, in substance, that he first saw the freight car as he had stated upon the first trial, but was unable to stop his automobile within 75 feet; that he had since been told that there was no ice under the snow; and that he did not know that there was any ice under the snow. He also testified upon the second trial that he was prevented from seeing the freight car sooner than he did see it by a flurry of snow.

The important question now presented is whether, taking that view of the evidence most favorable to the plaintiff, it was sufficient to support a finding that the defendant was guilty of any actionable negligence in connection with the blocking of the crossing with the freight train.

While the plaintiff charged that the defendant was negligent in six particulars, the grounds of negligence can be reduced to three: (1) Unnecessarily obstructing the crossing; (2) failure to protect the traveling public by giving warning in addition to the mere presence of the freight car across the track; (3) occupying the crossing for an unreasonable and unnecessary period of time.

The controlling law is that of Iowa. See Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. If, under the law of that State, there was evidence which would justify a recovery by the plaintiff upon any of the grounds of negligence alleged, the trial court did not err in denying the motion of the defendant for a directed verdict; but if there was no such evidence, it was error to deny the motion.

The facts — without going into unnecessary detail — are, in substance, as follows: The crossing was level and unobstructed as to view and was of the usual type and with the usual warning signs. Highway Number 10, which runs east and west, was 28 feet wide, and there was a highway sign about 375 feet east of the tracks, and a cross-arm sign in the northeast angle of the intersection, reading "Railroad Crossing". On the evening of January 28, 1936, Herbert Stevens was riding with Lewis Fisher, an experienced driver, who was operating a 1933 Chevrolet automobile equipped with good lights and good brakes. In the early morning of that day Fisher had driven Stevens from Crystal Lake, Iowa, to Iowa City to visit Stevens' wife, who was in the hospital there. In going east to Iowa City they had used Highway Number 10. They were returning west from Iowa City upon the same highway when the accident occurred. There was snow upon the pavement and for some two hours before the accident it had been snowing. "The snow wasn't falling so terribly heavy. There was quite a wind. At times the vision would be fairly clear; then at times the wind would seem to whip the snow in front of you and you couldn't see very far." There was a windshield wiper on the driver's side of the windshield only. His side of the windshield was kept clean at all times. Sometimes the driver could see 100 feet or more ahead, but he could not see that far when the wind blew snow in front of the automobile. He was driving between 30 and 35 miles an hour as he approached the crossing at Dumont. He first saw the freight car when he was within 50 to 75 feet of it. He was then passing a roadway which other evidence in the case shows was approximately 70 feet from the tracks. He put on his brakes. The automobile slowed down a little, and it seemed to skid just a little as he reached the freight car. A sudden gust of snow had prevented his seeing the train sooner. There had been occasional gusts previously. His estimate of the distance within which he could have stopped his automobile at the speed he was traveling was 75 feet. There was "some snow" on the side of the freight car. There was no flagman at the crossing to warn approaching cars, and no lights at or near the freight car. The train was an extra freight train which was on its way north from Belle Plaine, Iowa, to Mason City, Iowa. When it left Belle Plaine it had 40 cars. Before reaching Dumont, it had stopped at Traer, Parkersburg and Kessley. It had set out one car at Traer, so that when it reached Dumont it consisted of 39 cars. The car behind the engine was a coal car which was to be delivered at Dumont. The train came in on the main line track and stopped at a point just south of the switch leading from the main track to the passing track. The purpose of stopping was to set out the one car consigned to Dumont. The train crew consisted of an engineer, a fireman, two brakemen and a conductor. Both brakemen, who were riding in the engine, dropped off just before it came to a stop. One of them, Rusk, went back to uncouple the coal car from the train. After uncoupling, he signalled the engineer to pull ahead. He rode the car beyond the passing track switch. He then opened that switch, and from there proceeded to open the switch which led from the passing track to the industry track, where the car of coal was to be spotted. The engineer backed the engine and coal car through the switch into the passing track, and thence to the industry track, where the car of coal was left. The other brakeman, Dollash, had proceeded to the point on the industry track where the car of coal was to be delivered. When the engineer had spotted the car, Dollash uncoupled it from the engine. At or about that time, the engineer, who had seen the lights of an automobile coming from the east upon the highway, and had not seen the lights shining under the train at the crossing, told Dollash that he thought it might have run into the train and that he (Dollash) had better look before the train was moved. Dollash then ran back to the depot, deposited the waybill for the car in a box, and went to the crossing. He found that the Fisher automobile had collided with the train, and gave stop signals with his lantern, which were seen by the engineer, at or about the time that the engine had completed its movement from the industry track to the passing track to the main track, and had been coupled to the train. When the train had stopped at Dumont, the conductor had gone to the rear of the train to warn any trains which might be approaching from the south. The train crew's estimate of the time which was occupied in setting out the car at Dumont and completing the movements above referred to was approximately five minutes.

Mr. and Mrs. Aukes, witnesses for the plaintiff, testified that the train had blocked the crossing for about twenty minutes when the accident occurred. They lived in a trailer-house about 540 feet east of the crossing. Mr. Aukes was outside of his house and about 300 feet east of the crossing when the train pulled in. He could see the train as it pulled in. He returned to the house and after he had been there some time he heard a crash. He looked out of a window, and sometimes could see the train and sometimes not on account of snow. The snow was whipping. "It was not snowing so awful bad, but it was whipping, and sometimes you could see it the train real plain, and other times you couldn't hardly see it at all."

There is no substantial dispute in the evidence except with respect to the extent to which visibility was affected by falling or blowing snow and as to the length of time that the crossing was blocked.

According to Fisher, he could see 100 feet ahead except during snow flurries. He saw the freight car about 70 feet ahead during a snow flurry. Mr. Aukes was able to see the train from a distance of 300 feet without the aid of lights, when it pulled into Dumont. After he heard a crash and looked from the window of his trailer, he could sometimes see the train 540 feet away. It is apparent that, while the snow affected visibility at times, it did not prevent an object as large as a gondola car from being visible to a driver upon the highway for some substantial distance ahead.

There is no dispute with respect to the fact that the train was placed where it...