Wright v. Chicago, R.I. & P.R. Co.
| Decision Date | 22 September 1936 |
| Docket Number | 43070. |
| Citation | 268 N.W. 915,222 Iowa 583 |
| Parties | WRIGHT v. CHICAGO, R.I. & P. R. CO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Black Hawk County; R. W. Hasner, Judge.
Action by administrator of the estate of F. J. Shattuck for damages for injuries received by his decedent resulting in the death of decedent alleged to have been caused by defendant's negligence. Judgment on directed verdict for defendant. Plaintiff appeals.
Reversed.
John S. Tuthill, of Waterloo, and Keohane & Kuhfeld, of Beach, N D., for appellant.
J. G Gamble and R. L. Read, both of Des Moines, and Swisher Swisher & Cohrt, of Waterloo, for appellee.
This is an action by the administrator of the estate of F. J Shattuck, deceased, for damages for injuries received by decedent, September 15, 1930, resulting in his death, when the automobile owned and driven by Oscar Tysver, in which Shattuck was riding as a guest, was struck by a Rock Island train in Rock Rapids, Iowa, at the intersection of federal highway No. 75 and defendant's tracks. The highway runs north and south and the railway tracks run east and west. The automobile was approaching the intersection from the north and the train was approaching the intersection from the west. The highway was in good condition and there were no diverting circumstances. Neither Shattuck nor Tysver was familiar with this crossing.
The plaintiff alleges that defendant was negligent in the following particulars:
1. Failure to erect an adequate sign where the railway crosses the highway to give notice of the proximity of the railway and to warn persons of the necessity of looking out for trains as required by Code, § 8000.
2. Failure to sound the whistle and ring the bell as required by section 8018.
3. In running its train at the excessive and dangerous speed of 50 miles an hour.
At the crossing the main track is on the north and the switch track on the south. North of the crossing is a cement bridge about 80 feet long and 68 feet wide. The distance from the center of the main track north to the center of the bridge is 100 feet. Six hundred feet north of the tracks is a highway sign warning travelers that they are approaching a railway crossing. There was a cross-arm or cross-buck sign containing the words " railroad crossing" in large letters, 52 feet south of the main track and 39 feet south of the switch track on the east side of the highway. There was no such sign north of the tracks and on the west side of the highway.
The view to the west for at least 900 feet from the highway was unobstructed for a distance of 150 feet north of the tracks. The tracks run straight west from the crossing for a distance of seven hundred feet and then turn to the southwest.
The Tysver car was in good mechanical condition.
Mr. Tysver testified that he saw the highway sign 600 feet north of the tracks and thereafter was keeping a lookout for trains. When he drove onto the bridge he was driving 25 miles an hour. When he reached the middle of the bridge, which was 100 feet north of the main track, he heard a long continuous blast of a train whistle, heard the bell, and saw the train approaching from the west. When Tysver reached the center of the bridge and saw the train he applied the brakes and was gradually slowing down before he left the bridge. He had almost stopped when he reached the track and then turned to the left in an attempt to miss the engine, but he failed in this attempt and the engine struck his car. Tysver first saw the cross-arm sign when he reached the bridge. With regard to this sign he testified as follows: " Seeing the cross-arm sign on the lefthand side of the road first brought my attention to the fact I was about to cross over a railroad track."
He could see the tracks to the east but testified that he could not see the rails where they crossed the highway from the bridge. Plaintiff's witness, Earl B. Cossan, an engineer, testified that the rails were visible at the crossing from a distance of 50 feet north and that the planking and the crossing itself was visible from the north end of the bridge and probably visible for a distance of 200 feet north of the crossing.
Both parties admit that Tysver could have stopped his car in time to have avoided the accident and we take judicial notice of the fact that a car in good mechanical condition and with good brakes traveling at a speed of 25 miles an hour can be stopped in a less distance than 100 feet.
Mr. Tysver was clearly guilty of negligence.
At the conclusion of plaintiff's evidence defendant moved for a directed verdict on the following grounds:
1. F. J. Shattuck was guilty of contributory negligence.
2. The defendant was not shown to have been guilty of any negligence.
3. Irrespective of negligence on the part of defendant, the negligence of Tysver was the sole proximate cause of the injuries to and the death of Mr. Shattuck.
This motion was sustained generally. Plaintiff appeals.
On the question of contributory negligence on the part of the decedent the evidence reveals that Shattuck observed the train approaching from the west about the same time that Tysver first observed it, that is, when the automobile was in the center of the bridge 100 feet north of the crossing, and told Tysver that a train was approaching. Tysver immediately commenced to reduce the speed of the car and did so down to the point of the collision.
In the case of Bradley v. Interurban R. Co., 191 Iowa 1351 183 N.W. 493, 495, which was an action for personal injuries growing out of an automobile accident, we stated: ...
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