Wilson v. Illinois Cent. R. Co.

• Decision Date: 12 January 1911
• Citation: 129 N.W. 340,150 Iowa 33
• Parties: JAMES WILSON, Administrator, Appellant, v. ILLINOIS CENTRAL RAILROAD CO., Appellee
• Court: Iowa Supreme Court

129 N.W. 340

150 Iowa 33

JAMES WILSON, Administrator, Appellant, v. ILLINOIS CENTRAL RAILROAD CO., Appellee

Supreme Court of Iowa, Des Moines

January 12, 1911

Appeal from Dubuque District Court.--HON. M. C. MATTHEWS, Judge.

ACTION at law to recover damages for the death of John Semmens caused by his being struck by a train at a highway crossing. The trial court directed a verdict for defendant, and plaintiff appeals.

Affirmed.

A. M Cloud and J. W. Kintzinger, for appellant.

Kelleher & O'Connor and E. J. Fitzpatrick, for appellee.

DEEMER J. EVANS, J. (concurring specially).

OPINION

DEEMER, J.

John Semmens was killed in Dubuque County, Iowa by a train operated by defendant, which collided with deceased at and in a public highway crossing in said county. The negligence charged against defendant is "that there was a high embankment on either side of said defendant's tracks at and easterly of said railway crossing; that said defendant railroad company was negligent in allowing obstruction consisting of tall weeds, trees and grass to be and remain upon and along the top of said embankment alongside of its tracks so as to prevent persons approaching the same from the north from having a clear and unobstructed view of its tracks and cars approaching thereon from the east. Said railroad company was also negligent in failing to sound any bell or whistle at the regular whistling post for said crossing, or give any other warning of the approach of said train before reaching said crossing; plaintiff further states that said defendant was further negligent in this: That defendant's engineer operating the engine of said train saw the team driven by said deceased approaching said public crossing in time to have averted the accident had he used ordinary care in attempting so to do; that said engineer at the time he first saw said team approach said crossing knew of the dangerous position in which the deceased was placed, and said engineer could, by the exercise of ordinary care, have avoided the injury to said John Semmens, deceased, had he used ordinary care in attempting to do so or to slacken or stop the speed of the train sooner than he did, but said defendant's engineer knowing of the dangerous and perilous position in which deceased was placed failed to stop said train or slacken its speed sufficiently to have averted said injury." These allegations of negligence were denied by defendant, and it also pleaded contributory negligence on the part of plaintiff's intestate. The motion to direct was evidently sustained upon the theory that plaintiff's intestate was guilty of contributory negligence, and that because thereof there should be no recovery.

I. There was sufficient testimony to take the case to the jury on the question of defendant's negligence. Several witnesses testified that no bell was rung or whistle sounded while the train was approaching the highway crossing.

II. We are also of opinion that the testimony shows contributory negligence of the deceased in approaching the crossing. The railway tracks at the point in question run east and west. The highway over which deceased was driving runs north and south, and crosses the railway tracks at right angles. This crossing is about one mile west of the town of Farley. Four hundred and sixty-five feet north of the crossing is what is known at the Glew house, and the highway from this house to the railway tracks is somewhat higher than the general lay of the land toward the town. There were no embankments on either side of the highway. The land to the east of the highway crossing is practically level and somewhat lower than the traveled part of the highway until it approaches a cut made for the railway tracks. This cut ran easterly from the highway crossing a distance of four hundred and fifty feet, the deepest point of this cut being five and one-half feet to the top of the rail and this deepest part was at the easterly end of the cut. On the north side of the railroad right of way was a snow fence five and two-fifths feet high extending the entire length of the cut. The cars and engines used by defendant in the train which struck deceased were approximately fourteen feet in height. While there was a cornfield north of the cut and in close proximity thereto, this field was something like five hundred and forty feet east of the highway, and did not obstruct the view of oncoming trains. There were no other obstructions which would in any way interfere with sight of the train, save a few weeds on the inside of the railway fences, but these weeds offered no particular obstruction in any way interfering with a view of the approaching train. There was one small tree near the right of way which at some points in the highway offered a measure of obstruction to the sight of an approaching train, at least there was testimony to that effect. Plaintiff's intestate was driving south on the highway which we have described past the Glew house, and according to the undisputed testimony he could have seen the approaching train at any point in the highway after leaving the Glew house after the train left Farley, and at all times until it reached the highway crossing. It may be that under the testimony a jury would have been warranted in finding that there was a point sixty feet north of the crossing where one could not well see the approach of a train from the east, and that this condition existed to a point one hundred and fifty feet north from the track, being a distance of ninety feet where the train could not be seen or at least the view thereof was obstructed. Ordinarily where one is killed and there are no eyewitnesses of the transaction the law will presume that the person killed was in the exercise of ordinary care and doing nothing to jeopardize his life or limb. But this rule does not obtain where there are eyewitnesses. Here there was an eyewitness and he testified as follows:

I knew John Semmens in his lifetime. I remember of the Clipper train going east from Farley the afternoon that John Semmens was killed. Prior to the time the Clipper train came west I was going after my cow; she was tied up alongside the railroad. I know where the public highway is that runs east and west near Farley, and am familiar with where the highway turns off north to go up to the Glew home. My cow was tied about one hundred feet east from the corner of the fence as the road turns up to go to Glew's. The cow was tied about eighty or ninety feet from the point where the road crosses the tracks coming south. I heard the Clipper train leaving Farley that day. When I heard the Clipper train come I was a little east of where my cow was tied. I kept right on going after the cow. The next I heard was the train whistling at the whistling post. I was right near the cow at that time. I saw John Semmens that day, but not to speak to him, I noticed Semmens, as he left Glew's to go south. He left Glew's about the same time the Clipper train left Farley. Semmens had a box hayrack, and the team was a bay and a gray. After Semmens left Glew's I observed that he was standing in the middle of the wagon with his face to the west and back to the east. The team trotted right along down the road after he started. At the time the train sounded the whistle for the whistling post Semmens was about halfway between the railroad and Glew's. At that time I saw he was in the wagon. He was standing in the middle with his face to the west and back to the east. I saw and observed Semmens after the whistle sounded for the crossing at the whistling post as he came down the road toward the railroad. Q. Just tell the jury what he did, if anything? A. Didn't do anything; kept right on driving. Q. Tell the jury whether or not, from the time you saw him midway between Glew's house and the crossing and after the signal sounded, Semmens turned at any time to look easterly? A. No, sir; he didn't. Q. How did his team continue to go? A. Trotted right along. Q. You may tell the jury whether or not you heard any danger signals being sounded? A. Yes, sir; I did. Q. Did you see where Semmens was at that time? A. Yes, sir; he was right even with the snow fence. Q. At that time, tell the jury what was done, if anything, that you saw toward stopping this team or driving it forward? A. No, sir; he kept right on driving it. Q. How long did you see him? A. I saw him until the train came between me and him. I did not notice the position the lines were in. During all the time from the time he left the Glew crossing he was looking west. Q. Then you say that you noticed Mr. Semmens as he was coming down from the Glew road? A. Yes, sir. Q. As he came down the Glew road, you saw him look to the east at one time; you say he looked to the east? A. No, sir. Q. Did you ever see him look to the east? A. No, sir. Q. At the time of the short whistles the team was just inside the snow fence, just about at the snow fence?

The engineer testified that when he first saw deceased he was approaching the right of way, and "I judged from the motion of the horses' heads that they were moving at that rate of speed; that the driver or party who was with them did not know that the train was approaching. I immediately shut off steam, set the brake and commenced to blow the alarm."

Under this state of facts it is clear that deceased was guilty of contributory negligence. In Schaefert v. C., M. & St. P R. R., 62 Iowa 624, we said: "If the plaintiff's son had stopped four or five rods from the track and looked for the train this accident would not have occurred, or if he had not stopped but looked for the train at a place where it could have been seen, the accident would not have occurred. Where a person traveling on the highway and approaching a known crossing of the...