Wiedenfeld v. Chicago & N.W. Transp. Co.

• Decision Date: 20 April 1977
• Docket Number: No. 2-57216,2-57216
• Parties: Richard J. WIEDENFELD, as Administrator of the Estate of Marcia Wiedenfeld, Deceased, et al., Appellants, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Successor in Interest to Chicago and Northwestern Railway Company, and Alfred J. Coleman, Appellees. Margaret A. LENNON, as Administrator of the Estate of Gregory Francis Lennon, Deceased, and Margaret A. Lennon, Appellants, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Successor in Interest to Chicago and Northwestern Railway Company, and Alfred J. Coleman, Appellees.
• Court: Iowa Supreme Court

Page 691

252 N.W.2d 691

Richard J. WIEDENFELD, as Administrator of the Estate of Marcia Wiedenfeld, Deceased, et al., Appellants, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Successor in Interest to Chicago and Northwestern Railway Company, and Alfred J. Coleman, Appellees.

Margaret A. LENNON, as Administrator of the Estate of Gregory Francis Lennon, Deceased, and Margaret A. Lennon, Appellants, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Successor in Interest to Chicago and Northwestern Railway Company, and Alfred J. Coleman, Appellees.

No. 2-57216.

Supreme Court of Iowa.

April 20, 1977.

Jerry C. Estes, of Kersten, Opheim, Carlson & Estes, Fort Dodge, for appellants.

C. W. Garberson and Ralph W. Gearhart, of Shuttleworth & Ingersoll, Cedar Rapids, and John H. Mitchell, of Mitchell, Mitchell, Murray & Blackburn, Fort Dodge, for appellees.

Heard by REYNOLDSON, Acting C. J., and MASON, LeGRAND, HARRIS and McCORMICK, JJ.

REYNOLDSON, Acting Chief Justice.

Plaintiffs' decedents, Marcia Wiedenfeld and Gregory Francis Lennon, died following a collision between the auto in which they were passengers and a locomotive owned by defendant Chicago and North Western Transportation Company and operated by defendant engineer A. J. Coleman. Separate actions for damages, consolidated for trial, resulted in verdicts for defendants. We have consolidated these appeals and now reverse and remand for new trial.

The collision occurred about 10:40 p. m. on Friday, July 28, 1972. Plaintiffs' decedents, both 17, were riding in a 1964 Chevrolet car driven by 16-year-old Susan Johnson. This auto was proceeding westward on an east-west Webster County blacktop road about two miles from Fort Dodge. At the collision point defendant railroad's single track angled northeasterly across the blacktop at grade. The usual crossbuck signs were in place. There was corn growing in the field southeast of the crossing.

Earlier in the evening Susan borrowed her father's car and was driving several other girls, including Marcia, around Fort Dodge. They heard about a party for a boy entering the service and followed another auto to what was referred to in the record as the Dencklau shed. A "kegger" was in progress. Since the party was not in honor of the person the girls knew, they stayed only a brief time. There was testimony two of the girls, including Marcia, may have consumed beer. The uncontroverted evidence disclosed Susan consumed none. Gregory (who apparently drank some beer) and another boy asked and received permission from Susan to ride back to Fort Dodge with them.

About the same time the Johnson car left the Dencklau shed area, David Rial and Charles Habhab left on their motorcycles. All proceeded west on the blacktop toward the railroad crossing.

Rial testified he and Habhab were going about 45 m. p. h. on their cycles. He saw a light he thought was a farmyard light. When Rial discovered it was a train headlight, he sped up and signalled Habhab to do the same. They barely cleared the train. When he had passed over the tracks, he looked back and saw the car for the first time and concluded it was not going to make it across.

Susan testified she was driving 35-40 m. p. h. before impact. There was no radio or air conditioning in operation. Her window was rolled down and there was no commotion in the car prior to impact. She looked left and right and then ahead. She did not hear a train whistle nor did she see the train headlight except possibly just prior to impact. She testified, "I was just driving down the road, and I saw the train, and I braked it, and we hit." She was seriously injured in the collision. At trial she had no recollection of any motorcycles on the road.

Plaintiffs introduced testimony of the surviving car occupants, the motorcyclists and persons living near the crossing, none of whom heard a train whistle before it reached the crossing. Defendants introduced controverting evidence.

Defendants' evidence disclosed that the train, comprising 39 cars and two diesel locomotives, was traveling at 30 m. p. h. as it approached the crossing from the southwest. Three persons were in the cab of the lead locomotive: engineer A. J. Coleman fireman R. N. Attwooll, and brakeman Don Heddinger.

Heddinger testified the engineer began blowing the whistle for the crossing at or before the whistling post. He observed the vehicles when the train was about 1100 feet from the crossing and the vehicles were a half mile away; the motorcycles passed the auto; he became alarmed and stood up most of the 25 seconds it took to reach the crossing because they did not appear to be stopping. The train did not slow down. He testified he started blowing the back-up whistle, a horn on top of the diesel facing to the rear. About 50 feet from the crossing, the engineer placed the train in an emergency braking condition. The motorcycles cleared the train by a car length to 50 feet; the car thudded into the side of the locomotive. The locomotive stopped 12 to 15 (railroad) car lengths on the other side of the crossing.

Fireman Attwooll was sitting on the left side in the locomotive cab. He had an emergency brake valve control available. It was his duty to "correct any malfunctions, and on the lookout for any obstructions or anything that might show up in front of you, crossings, anything like that." The brake valve was on the left side for the purpose of using it at his discretion. He testified the engineer blew the whistle continuously from a private crossing south of the whistling post, which was 940 feet from the crossing. He saw the vehicles when they were a half mile east of the crossing and observed the motorcycles pull up and pass the auto about 300 feet from the crossing. He estimated all were going approximately 60 m. p. h. Attwooll testified Heddinger started blowing the back-up whistle at the whistling post. He thought the engineer first applied the brakes when the engine was 160 to 200 feet from the crossing. He testified, "I was standing up when we seen them cars; we stood, all of us stood up" at the whistle stop and continued to stand until the impact.

Conductor Bjelland was riding in a caboose positioned 16 cars from the back of the train. He also had an emergency brake valve available to stop the train but he neither heard nor saw anything unusual until the train went into emergency braking. He heard no whistle. He was riding in a steel caboose and there was accompanying train noise.

Engineer A. J. Coleman sat on the right hand side of the locomotive cab. He testified the train speed limit on this run was 35 m. p. h. He started operating the whistle just before the engine reached the whistling post "because I saw traffic coming." He never stood up. From where he sat in the engine, he could see the vehicle lights by looking over the top of the cornfield. During the 25 seconds he observed them, he was sure the motorcycles were at all times ahead of the car. At a point he variously estimated at three car lengths from the crossing, 100 feet past the whistling post, and halfway between the whistling post and the crossing, he throttled the train down about one-half and it passed the crossing at a little less than 30 m. p. h. When he moved the throttle there was still time to stop the train before it reached the crossing by application of brakes. He testified the bell was ringing for the private crossing and at all times thereafter.

Plaintiffs' evidence, expert and other, tended to show the corn would obscure the locomotive headlight (which was placed below the top of the diesel) from one seated in a car, creating a hazardous crossing. Defendants' evidence, both lay and expert, indicated the headlight would have been visible over the top of the corn and the crossing was not hazardous.

On this appeal, plaintiffs raised 12 issues for review, some of which we consider in the divisions which follow.

I. Instruction relating to the railroad's liability.

Plaintiffs' petitions alleged both the defendant railroad and defendant engineer were negligent in failing (a) to maintain an automatic signal at the crossing, (b) to sound a whistle and ring the bell, (c) to reduce speed of train as it approached the crossing, (d) to maintain a proper lookout and (e) to stop the train before it collided with the Johnson auto when the collision could have been avoided.

Trial court's instructions submitted specification (a) as against the railroad company only. But in instruction 18 the jury was told,

"If the defendant engineer was not negligent in one or more of specifications B, C, D & E, there can be no recovery by the plaintiffs as against him or the defendant railroad company on these specifications, and your verdict should on these specifications be neither against the defendant engineer or the defendant railroad company on said specifications of negligence."

Plaintiffs took timely exceptions to this instruction:

"Your honor, we would object to instruction No. 18 for the reason that the second and third paragraphs create an impression which would be erroneous, that if the engineer alone was not guilty of specifications (b), (c), (d), (e) * * * then there would be no liability for the railroad. This is not the law; the railroad can be guilty of negligence through the fireman, for example, or any other employees of said railroad, and the manner in which the instruction is written, it places emphasis on the fact that if the defendant engineer was not (sic) innocent in one or more of the specifications, there can be no recovery by the plaintiffs as against him or the defendant railroad company.

"That is erroneously stated, and is an improper statement of law."

Plaintiffs argue they charged both the railroad and the engineer were negligent in these specific ways, there was evidence of negligence as to specifications (b) through (e) on the part of railroad employees other than the engineer, and thus the above instruction was in...