Waters v. Chicago, Milwaukee & St. Paul Ry. Co.
| Decision Date | 17 July 1920 |
| Docket Number | 32634 |
| Parties | GEORGE WATERS, Administrator, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY et al., Appellees |
| Court | Iowa Supreme Court |
REHEARING DENIED OCTOBER 23, 1920.
Appeal from Clayton District Court.--A. N. HOBSON, Judge.
ACTION in the name of the administrator of the estate of Edward Waters for damages. While attempting to cross defendant's track at a highway crossing, the automobile in which deceased was riding, was struck by one of its engines, killing him instantly, severely injuring his wife, and completely demolishing his automobile. The court, at the conclusion of all the testimony, upon motion of counsel for defendant directed the jury to return a verdict in its favor. There was a judgment on the verdict for costs, and plaintiff appeals.
Affirmed.
Burling & Burling and William S. Hart, for appellant.
Hughes Sutherland & O'Brien and D. D. Murphy & Son, for appellees.
I.
Defendant operates a line of railway westward from Postville, Iowa, which is paralleled by a public highway, referred to in the evidence as "The Military Road." This highway lies south of defendant's track for the entire distance between Postville and the Kahle crossing, except for a distance of 80 rods. The last mile or mile and a half is on the south side. Shortly after noon on July 28, 1916, Edward Waters and wife, who were riding in an Overland automobile, were struck at the Kahle crossing by one of defendant's engines going west. Mr. Waters was killed instantly, and Mrs. Waters severely injured. The automobile, which was thrown a distance of 100 feet, was completely demolished.
The negligence charged in plaintiff's petition is that the engine was being operated at a high and dangerous rate of speed; that no signal or alarm of its approach was sounded; and that the servants in charge thereof were negligent in not reducing the speed or stopping the engine before reaching the point of collision. There were two lines of telephone poles on the north side of the highway, and a line of telegraph poles inside defendant's right of way fence. For practically the entire distance traveled by Mr. and Mrs. Waters, they were in plain view of the railroad track; but it is claimed that, at the corner where they turned north from the Military Road to cross the track at the point where the accident occurred, their view to the east, and of the approaching engine, was obstructed by a dense growth of tall weeds, telephone poles, and a signboard 6 to 8 feet above the ground, on one of the telephone poles. Photographs introduced in evidence by both parties indicate the presence of weeds or grass at the point in question, and other testimony tends to show that some of them were 6 feet high. The right of way fence is composed of wires fastened to posts; but, from the corner where the highway turns north to the track, there is a board nailed near the top of the posts, below which are at least three strings of wire. One witness testified that the board is a common fence board, and another, that he thought it a 2 by 4. For practically all of the distance, the railroad track is elevated above the public highway; and, at the point of the accident, the elevation above the highway is from 1 1/2 to 2 feet. The day on which the accident occurred was warm, with very little wind. Mr. Waters was 50 years of age, in good health, with good eyesight, and a sound sense of hearing. This was also true of Mrs. Waters. A crew of one of defendant's trains was returning on an engine from Postville, where they had gone for water, leaving the train at Centralia, the first station west. The occupants of the engine, who were the engineer, fireman, and conductor, all testified that the bell was rung and whistle sounded at each of the crossings west of Postville, and that the speed of the engine did not exceed 20 or 25 miles per hour. Other witnesses who observed its movement testified that their attention was particularly attracted to its rapid speed, and that they observed that no warning was given at the crossings west of Postville. Mrs. Waters testified that she and her husband were listening, and did not hear the bell or whistle. The only evidence as to the speed of the engine, except that of the trainmen, is that of the witnesses, some of whom observed it from a distance, and who testified that it was running very fast, and what may be inferred from the effect of the collision. The automobile was thrown about 100 feet, Mr. Waters about 85 feet, and Mrs. Waters about 70 feet. All were found on the right of way. One witness, who was 60 rods west and 100 rods north of the crossing, testified that the engine stopped at a culvert which, subsequent measurements showed, was 447 feet west of the crossing. The engineer testified that the engine could be stopped at 50 miles per hour in about 450 feet. Defendant's witnesses do not designate the exact place at which the engine was brought to a standstill, but they estimate it at about the distance required to stop an engine traveling at 25 miles per hour. There is ample evidence, therefore, from which the jury might have found that the speed of the engine was somewhere between 25 and 50 miles per hour, and that the customary warnings of the approach of the engine were not given at the crossing. It is, however, contended by counsel for appellee that the occupants of the automobile are conclusively shown to have been guilty of contributory negligence. This is the principal question for our decision.
Many authorities are cited by counsel upon both sides; but the rules are familiar, and we do not deem an extended review necessary, in disposing of same. As stated, numerous photographs, taken shortly after the accident on behalf of both plaintiff and defendant, apparently show the situation and condition with more...
To continue reading
Request your trial
-
Waters v. Chi., M. & St. P. R. Co.
...189 Iowa 1097178 N.W. 534WATERSv.CHICAGO, M. & ST. P. R. CO. ET AL.No. 32634.a1Supreme Court of Iowa.July 17, 1920 ... Appeal from ... ...