Wiar v. Wabash R. Co.

• Decision Date: 15 December 1913
• Citation: 144 N.W. 703,162 Iowa 702
• Parties: WIAR v. WABASH R. CO.
• Court: Iowa Supreme Court

162 Iowa 702

144 N.W. 703

WIAR

v.WABASH R. CO.

Supreme Court of Iowa.

Dec. 15, 1913.

Appeal from District Court, Page County; Thomas Arthur, Judge.

Action at law to recover damages for injuries received by plaintiff and for damages done to an automobile resulting from a collision with one of defendant's trains at a highway crossing in the northeastern part of the town of Coin, in Page County, Iowa. The defendant denied all negligence and pleaded contributory negligence on the part of the plaintiff. On the issues joined, the case went to a jury, resulting in a verdict and judgment for plaintiff in the sum of $1,995, with interest. Defendant appeals. Affirmed.J. L. Minnis, of St. Louis, Mo., and Jennings & Mattox, of Shenandoah, for appellant.

Denver L. Wilson, of Shenandoah, for appellee.

DEEMER, J.

The accident occurred on the evening of August 21, 1909, at a railway crossing known as the “Weaver crossing,” which is about a mile north of the depot at the town of Coin. Plaintiff, who was driving an automobile in which he had as a guest one Hutchinson, while attempting to cross this crossing going in an easterly direction, was struck by one of defendant's regular trains, known as No. 50, en route from Omaha, Neb., to some point in Missouri, and his companion was killed, the automobile practically destroyed, and plaintiff himself cut, bruised, and injured. It is claimed that the train was running at an unusual and dangerous rate of speed; that it gave no signals for the crossing; that the right of way was covered by weeds and brush which had grown so high as to totally obscure the approach of trains to the crossing; and that the crossing itself had become out of repair and was practically impassible. Plaintiff alleges that he took the usual or more than the usual precautions and was guilty of no negligence on his part. All these allegations were denied by the defendant, and it specifically pleaded contributory negligence on the part of the plaintiff.

As we understand it, the only negligence submitted to the jury was the question as to whether or not defendant's employés gave proper signals of the approach of the train. All other matters alleged were treated as secondary to this one main question and as perhaps having some bearing thereon, but not as primary grounds of negligence. The instructions themselves will be considered, so far as necessary in a subsequent part of this opinion. Fourteen errors are assigned, and, to such as are regarded as material or controlling, we shall give our attention. The attached plat will aid in understanding the case.

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This plat, the top of which is to the north, shows the highway upon which the plaintiff was traveling; the way in which it approaches and crosses the railway; the Weaver crossing; and the town of Coin. There is also another crossing shown on the map, known as “Whitmore's,” which is about a half mile north of the Weaver crossing. The other railway shown on the map is the Chicago, Burlington & Quincy, but it crosses the defendant's tracks and runs east and west. It crosses the Wabash tracks by an overhead bridge which is something like 30 feet above the rails of defendant's tracks. The ground to the north of this crossing and on the west side of defendant's tracks is high, and it is claimed was so covered by timber and weeds at the time of the accident that one going north on the highway leading to the Weaver crossing could not see an approaching train until he was within 15 feet of the west rail of the defendant's tracks. The crossing is near the foot of a hill, which runs nearly three miles to the north of the crossing, and the curvature in the track is rather sharp, as the plat indicates. The train which struck the plaintiff was coming from the north and west, and plaintiff was going north with his machine from the town of Coin, intending to cross the railway at the Weaver crossing. It is also contended that the crossing was bad because of a washout of dirt from the east rail of the track, leaving a drop off of from 6 to 10 inches deep. What is known as the “Gibson corner” (not marked on the plat) is from 280 to 300 feet west of the Weaver crossing, and the road is slightly downgrade from this corner to the defendant's tracks. There is also a bridge in the highway, not shown by the map, 300 or 400 yards south of the Gibson corner. Plaintiff drove over this bridge, went to the Gibson corner, and thence eastward to the Weaver crossing, where he was struck by the train. The train came coasting down the hill, no smoke or steam escaping from the engine, and as plaintiff claims, at the rate of 60 miles an hour, without any signals or warning sounds being made within a mile of the crossing. He says that his view of the train was obstructed by reason of the topography of the ground between him and the train and because the intervening hill or rise in the ground was covered by timber and by brush and weeds, and that notwithstanding diligence on his part, both in the handling of his machine and in looking and listening for the approach of the train, he did not see it until he was within 4 or 5 feet of the tracks, it then being from 50 to 100 feet away, and that, notwithstanding every effort on his part, he was struck by the train.

[1] I. The first errors complained of relate to rulings on the admission and rejection of testimony. A witness, over defendant's objections, was permitted to testify that he considered plaintiff good in the handling of engines. The object in introducing the testimony is not clearly shown. It was doubtless proper to show that plaintiff was a skilled mechanic in fixing the amount of his damages; but it was not proper for plaintiff to show that he was skilled in the handling of engines for the purpose of having the jury infer that he was careful at the time of the accident. However, it doubtless was competent on plaintiff's theory that, after seeing the engine and train approaching, he used ordinary care to avoid the accident, and his skill in handling the engine might have had some bearing upon that question. But the answer of the witness that he considered the plaintiff good in the handling of engines was perhaps not as explicit as it should have been, and the court might well have excluded it on any theory. On the other hand, we do not see how any prejudice could have resulted from failure to exclude it. The question, at any rate, was a very collateral one and could have had no bearing, upon the case, save as we have indicated.

[2] Plaintiff was asked whether the engine whistled between the Whitmore and the Weaver crossings, and he said it did not. The question called for a fact, and the witness assumed to answer it. The weight of his testimony was for the jury, and the answer was not a conclusion.

[3] A man by the name of Teel, who was a baggageman on the train which struck the plaintiff, testified for the defendant as to the giving of four whistles as the train approached the town of Coin on the evening in question. On cross-examination, over defendant's objections, plaintiff's counsel was permitted to ask him about other signals made by the engine on this trip on its passage from Council Bluffs to Coin. This line of examination was clearly admissible to test his powers of observation and recollection. So much for the rulings on evidence.

[4] II. General complaint is lodged against the instructions, and of some of them in particular. The main point is that the court failed to refer to section 1571h of the Code Supplement, which reads as follows: “No person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life and limb of any person. * * * Upon approaching a crossing of intersecting public highways, or a bridge, or a sharp curve, or a steep descent, and also in traversing said crossing, bridge, curve or descent, a person operating a motor vehicle shall have it under control and operate it at a rate of speed less than hereinbefore specified, and in no event greater than is reasonable and proper, having regard to the traffic then on such highway and the safety of the public.” We do not see that it has any bearing upon the case, save as it requires the operator to have his machine under control in certain instances and to operate it no faster than was reasonable and proper, having regard to the safety of the public. This was incumbent on plaintiff, notwithstanding the statute which had but a remote application, if any at all, to railway crossings. Plaintiff was obliged to use reasonable and ordinary care in approaching the crossing, not only for his own safety, but the safety of the public as well. The defendant asked no instruction upon the proposition that the statute applied, and, as it does not do so in terms, there was no error in failing to instruct with reference thereto.

[5] Instruction No. 8 is complained of. It reads as follows: “The plaintiff claims that the defendant company, through its employés, was negligent in that it allowed the train in question to approach the crossing, where the accident occurred, noiselessly, without signals or warnings, and at a high rate of speed. Now, there is no positive provision of law requiring signals or warnings of the approach of a train to a crossing, excepting that above set out requiring the sounding of the whistle twice, sharply, at least 60 rods before reaching the crossing, and the ringing of the bell continuously thereafter until the crossing is passed. There is no law limiting the rate of speed at which trains may be run at places like the crossing in question. It cannot be said as a matter of law that any rate of speed would, in and of itself, be negligence. But the defendant company was required to so run and manage its train as it approached the crossing in question, and to give such signals on the approach of its train to the...