190 Iowa 509 | Iowa | 1920
Lead Opinion
— An automobile, operated by Lewis Reinig, accompanied by C. J. Berger, was struck by an engine with passenger train, as it passed in an easterly direction over Seigel Street, in the city of Tama, at about 2 o’clock P. M., September 19, 1916. Both occupants of the automobile were killed, one expiring immediately, and the other the following day. In this action, recovery for damages to the estate of Berger is sought. The petition alleges that he was without fault, and that 'the defendant was guilty of negligence: (1) In failing “to give any warning of said train, as required by law, before approaching the crossing;” (2) in operating it at a rate of speed in excess of that permitted by an ordinance of the city of Tama, limiting same to 6 miles per hour; (3) in operating the train at a dangerous rate of speed where the view of its approach was partially obstructed, so that the deceased was prevented from seeing the approaching train; (4) in failing to stop the train after discovering the perilous situation of deceased in time to avoid the collision; and (5) in failing to keep a flagman, or resort to other precaution at the crossing, to warn travelers of the approach of the train. Appellant challenges the sufficiency of the evidence to carry the issues to the jury, and rulings on the admissibility of evidence, criticises the instructions, and charges that certain remarks in the opening argument were prejudicial to a fair trial.
Seigel Street is 66 feet wide, with 31 feet paved, 12 feet 7 inches each side parked, and 5-foot sidewalks. The distance from the north line of Fourth Street, extended so as to cut the west line of’Seigel Street, to the south rail of defendant’s main line, is 65 feet, and from the south line of Fourth Street so extended, 112 feet. There is a clump of 7 barberry bushes, from 2 to 4 feet high, beginning 38 feet south of the south rail. The valve box noted on the map is only a few inches above the surface. The north side of two large lilac bushes is 52 feet south of this rail. Thirty-six feet south of the rail on the cui’b line is an electric light pole, and a few feet farther on, a telephone pole. A water crane about 12 feet high is about 6 feet from the south rail. From the lilacs, a row of 18 bushes extends westward to the south side of the water tank, and in that row is a tree. Northeast of the water tank is another tree, about 12 inches in diameter. The center of the water tank is about 68 feet from the center line of the south track. The pump house
Burley testified that, when within 40 or 45 feet from the south rail, one would hare an unobstructed riew for about 500 feet to the west, and this was confirmed by McNalley. The decedents, then, as they drore along Fourth Street west, might hare seen the defendant’s railway from the interlocking tower for a considerable distance to the east; and, as they turned north on Seigel Street, they might hare seen the railway from the crossing for more than 100 feet west; but the jury might hare found that their riew was obstructed by the tree located by the engineer as about 110 feet west of Seigel Street, in connection with the barberry bushes, to the point to which the railway might hare been seen to the east of the interlocking tower, as decedents drore west on Fourth Street. The train might hare passed the line of rision when they looked, if they so did, immediately before turning, or as they turned north on Seigel Street, and had not passed the obstructions to their riew, and reached where it could be seen, as it approached the point of collision. Much depends on the speed of the train. The jury might hare found that the engine had not then reached a point 200 feet west of the railroad crossing. Had the train been moring so that its speed did not exceed 6 miles an hour, upon reaching the west side of Seigel Street the decedents could hare crossed the tracks in safety. They had a right, in approaching the crossing, to assume, if the contrary did not appear, that the employees of the company would gire the usual and customary warnings, and would not run at an unlawful rate of speed. Moore v. Chicago, St. P. & K. C. R. Co., 102 Iowa 595; Case v. Chicago G. W. R. Co., 147 Iowa 747; Wolfe v. Chicago G. W. R. Co., 166 Iowa 506; Merchants T. & S. Co. v. Chicago, R. I. & P. R. Co., 170 Iowa 378; Wilson v. Chicago, M. & St. P. R. Co., 161 Iowa 191. It was for the jury to say, then, whether the decedents acted as ordinarily prudent men would hare acted, under like circumstances, in concluding, if they so did, in turning up Seigel Street, that they could cross the track in safety before the train would reach the crossing. Whether, notwithstanding that the track might hare been clear to a distance of orer 100 feet to the
“When any city or town shall cause or has heretofore caused its ordinances to be published in book or pamphlet form, such book or pamphlet shall be received as evidence of the passage and legal publication of such ordinances, as of the dates mentioned or provided for therein, in all courts and places, without further proof. When the ordinances are so published, it shall not be necessary to publish them in the manner provided for in the preceding section.”
The dates appearing, the ordinances are presumed to have been properly adopted and published, as exacted in the section preceding that quoted. Their inclusion in such a book is sufficient authentication, and therefrom it is to be presumed that they had been legally adopted. Incorporated Town of Hancock v. McCarthy, 145 Iowa 51. The statute quoted does not contemplate the re-enactment or the republieation of the ordinances, but merely their compilation, for convenient use and to simplify the method of their proof. Gallaher v. City of Jefferson, 125 Iowa 324, 328; Rocho v. Boone Electric Co., 160 Iowa
III. The evidence was insufficient to carry the issue of last fair chance to the jury. The engineer testified that:
'Inquiry was made of the witness, on cross-examination, how far he could have seen the crossing and anything approaching it, had he been looking, and also with respect to tests as to how quickly a train might be stopped, though without eliciting information on the latter subject.
“Q. You didn’t set your brakes after you sounded the whistle? A. I blew the whistle with my left hand, and before I discontinued blowing the whistle, I pulled the lever around this way, the brake lever, in emergency position, and I was about 25 feet from the car when I lifted the brake into emergency. When I first saw the car, it was right on the crossing,- — • about 20 feet, I should judge. Q. If you had seen the car before that, you would have put your brakes on before, wouldn’t you? (An objection was overruled.) A. Yes. I didn’t see the first
The fireman was asked:
“Q. Where was the engine at the time that alarm was given, with reference to Seigel Street ? A. Just a short distance from it, perhaps 100 feet, 150 feet, — something like that. I had not seen the automobile in which these two men were killed, up to that time. * * * Q. How far do you say that engine was from the crossing, when these blasts were given ? A. Well, I don’t know, — somewhere around 100 or 125 feet.”
Roach estimated the distance from the crossing at which the alarm was sounded, at 75 feet. The testimony-of the engineer that he did everything he could to stop the train when he first saw the decedents’ automobile approaching the track, is undisputed, save by Nellie Phillips, who swore that the brakes were not set until the collision occurred. The record is without evidence tending to show within what distance such a train as that in question, moving at the rate it might be found to have been moving, could be stopped, save what actually happened. It is not perceived, then, wherein defendant’s employees were negligent in the management of the train, after the perilous position of decedents was discovered by them. According to the evidence, the engineer did all he could, and there was no evidence tending to show that he could have brought the train to a standstill before reaching the automobile, or have slowed it down enough to have enabled the automobile to pass over the track. The issue ought not to have been submitted.
IV. Nor does the instruction under which this issue was
• Later in the same instruction, this also appears:
“The general rule that one’s own negligence is, in such a case, precluded from recovery, is subject to the qualification that, where the defendant has discovered, or should have discovered, the peril of the position of the one killed, and it is apparent that he cannot escape therefrom, or, for any reason, does not make an effort to do so, the duty becomes imperative for the defendant to use all reasonable care to avoid the injury; and, if this is not done, he becomes liable, notwithstanding the negligence of the injured party or deceased.”
The italic is ours, and is used to point out the precise error the court fell into. It is the settled doctrine of this court that, in order to render the employees of a steam railway company negligent under the doctrine of last fair chance, they must have actually seen the persons injured, in such time that, by the exercise of ordinary care, they could have avoided injuring them. It is not enough that, by the exercise of ordinary care, they must have seen. It must appear from the evidence that they in fact did see, or knew of their perilous position. See, among many decisions, Bourrett v. Chicago & N. R. Co., 152 Iowa 579; Purcell v. Chicago & N. R. Co., 117 Iowa 667; Dieckmann v. Chicago & N. R. Co., 163 Iowa 13; Wilflin v. Des Moines City R. Co., 176 Iowa 642, 643.
“If there was no eyewitness who saw or who was observing the movements of decedent, C. J. Berger, at or prior to his looking and listening, there is an inference due to the instinct of the love of life, and the desire of self-preservation, that the decedent was exercising care on his part at that time.”
The jury was then told this inference was not conclusive, and that, in determining whether he did exercise reasonable care in keeping a lookout and listening, all the facts and circumstances in the ease bearing thereon should be considered. This is a correct statement of the law, though it might well have been said that there was an eyewitness to what Berger was doing at the time of the collision.
One Roach, who was at work in the carpenter shop, testified that Berger had his “head turned towards the east,” when the automobile went upon the railroad crossing. While several witnesses observed the decedents driving the car west on Fourth Street and up Seigel Street towards the crossing, no one pretended to observe what either Berger or Reinig did prior to the collision, save that Reinig was operating the car. No one was able or undertook to say whether either of the decedents looked or listened, or omitted so to do, for the approach of the train. In these circumstances, the inference that decedents exercised the instinct of self-preservation, in approaching the track,
“it js strange that men drive onto tracks without seeing where they are going; I could see them for quite a distance. If they had been looking, they could have seen me, or seen us;” and that he said further that; “if a man stopped his train every time an automobile crossed the track, he would be a long time making a run;” and that “neither one of these men looked up until just before the collision, and the big fellow just looked up;” and also, that he “thought they would be out of his way.”
"We are of the opinion that the court did not err in receiving this evidence. It was not adduced as impeaching, and, of course, might not have been received as in the nature of admissions binding defendant. McPherrin v. Jennings, 66 Iowa 622; Alquist v. Eagle Iron Works, 126 Iowa 67. "What the engineer said was admissible, as part of the res gestae. The conversation occurred almost immediately after the collision, the witness saying, “within five minutes.” The engineer, at that time, was at the cab steps, and the train had not started on its way. Scarcely any time within which to premeditate or fabricate had elapsed, and what the engineer is reported to have said seems the natural and spontaneous utterances produced by what had happened, rather than a mere recital. The facts apparently wete talking through the party, rather than the party through the facts. Westcott v. Waterloo, C. F. & N. R. Co., 173 Iowa 355; Alsever v. Minneapolis & St. L. R. Co., 115 Iowa 338. A portion of that Said was in the nature of a suggestion, but such as was likely, in an exclamation concerning what had occurred, or conditions at the time. There was no error in receiving the evidence.
The witness, after stating that his train was moving at 20 or 25 miles an hour, was asked:
An objection as incompetent, irrelevant, and immaterial, and not proper cross-examination, calling for an opinion and conclusion, was overruled. The objection should have been sustained. The inquiry called for comparative computations, rather than expert opinion, and on the witness to decide the precise issue which the jury was to pass on.
Nor was this cross-examination of anything brought out in the direct examination. Butler v. Chicago, R. & Q. R. Co., 87 Iowa 206. Cross-examination for the purpose of ascertaining all the facts and circumstances that actually existed, was proper, but it was error to permit cross-examination as to what might have happened, had the facts been different than they actually were. Russell v. Schade Brewing Co., 49 Wash. 362 (95 Pac. 327).
IX. The mayor of Tama was called as a witness, and was asked:
An objection as incompetent, irrelevant, and immaterial, and not tending to show any negligence on the part of the defendant, was overruled, and the witness answered: ‘ ‘ They did. ’ ’ The witness was also asked if he had had any conferences with the officials of the defendant company relative to putting in a
“Every action must be prosecuted in the name of the real party in'interest; * * * but a trustee of an express trust =>:= * * may gue jn j^g owrL namej without joining with him the party for whose benefit the action is prosecuted.”
Some things appearing in the record will not be likely to occur in another trial, and therefore are given no attention.— Reversed.
Supplemental Opinion
Rehearing
“Nor is it held to be incumbent on the highway traveler to continue to scan the track in either direction at each successive step until the crossing is accomplished; but, on the other hand, he must not forget that he is endowed with senses of sight and hearing, the reasonable use of which is, in a great majority of cases, his sufficient protection against injury of this nature. ■ There are not wanting many cases where the traveler, having once looked for approaching trains when at a suitable distance from a crossing, is held not to be negligent, as a matter of law, because he failed to look again. In these cases, however, we invariably find circumstances reasonably excusing the exercise of such vigilance, — as, for instance, intervening obstructions to
In Anderson v. Dickinson, 187 Iowa 572, also relied upon by defendant, the complainant’s view was- obstructed up to 55 feet from the track, where, notwithstanding denial, the court held that, in the nature of things, the approaching train must have been seen. Numerous other cases so holding are cited. Another case, Sackett v. Chicago G. W. R. Co., 187 Iowa 994, seems to be relied on. There, the plaintiff was riding on the back seat of a motor cycle, with his back in the direction of an approaching train. At the distance of 48 feet from the crossing, he could have seen up the track 208 feet; and, when the train reached the street, the motor cycle was about 60 feet from the point of collision. Neither the driver nor the plaintiff saw it, and the latter at no time looked in the direction from which the train came, though he claimed to have listened. In none of these decisions was the complainant’s right to rely on the railroad company’s obedience to law involved. The law does not specify precisely what a person about to pass over a railroad crossing must do. The only test to be applied is that, in so doing, he must exercise ordinary care. If the view of the track on which a train is approaching is clear all the way for 100 or more feet to the crossing, from the time it first comes in view, and there are no circumstances excusing the exercise of vigilance, in event of a collision the traveler is held to have been negligent. The trouble is in ascertaining whether there are intervening circumstances, and whether they are sufficient to excuse a more vigilant lookout than was kept.
In Winey v. Chicago, M. & St. P. R. Co., 92 Iowa 622, the court, speaking through Deemer, J., remarked that:
“The rule, no doubt, is that, if the traveler, having looked and listened without seeing or hearing an approaching train within a reasonable distance of the crossing, is, by reason of a neglect of the railroad company to blow the ‘statutory’ whistle, run upon and injured, liability attaches therefor.”
“Not so because of sitting down, as possibly this may have been a matter of precaution, for the management of his team in going down grade, and to avoid the ruts and side ditches. Nor can it be stated, as a matter of law, that he should have stopped again to look and listen” (citing Winey v. Chicago, M. & St. P. R. Co., supra).
The principle is well expressed in Platter v. Minneapolis & St. L. R. Co., 162 Iowa 142:
“A traveler upon a public highway is not bound to look or listen at any particular place, nor is he bound, as a matter of law, to look, especially where his view is obstructed at any given point, as he passes along the highway. The obstructions to his view are to be taken into account, and he also has the right to rely upon the railway operating its trains in accord with the law and ordinances of the city. If failure to do these things is calculated to mislead a traveler, the company cannot complain of his conduct when acting in reliance upon the performance thereof. He has the right to rely upon a burning headlight, when such headlights should be lighted; on the ringing of the bell; and, in exceptional cases, within a town, especially where the crossing is a dangerous one, upon the blowing of the whistle or some other warning: and, if he does so, and at the same time exercises the ordinary precautions of sight and hearing, he cannot be held guilty of contributory negligence, as a matter of law. In such circumstances, the question is one of fact for a jury.”
In Davitt v. Chicago G. W. R. Co., 164 Iowa 216, the driver of the team approaching the track looked and listened when 150 feet distant, and again when 100 feet from the crossing, and did not see the train; but, had he looked at a distance of 50 feet, the jury might have found that he would have seen it, and,
“He had the right to expect a compliance with the custom of giving signals at that crossing; and, if he- listened and heard nothing, there was presented a question for the jury to determine whether he was, at the time, exercising due care. ’ ’
See, also, Brossard v. Chicago, M. & St. P. R. Co., 167 Iowa 703, where it is said that the law does not fix any, point at which a traveler should look and listen, but does exact of him the exercise of ordinary care, in passing over the crossing.
It will be recalled that, Reinig driving and Berger at his side, the automobile came down Fourth Street in a westerly direction, and, as it approached Seigel Street, they might have seen the defendant’s track near the interlocking switch; and that, as they turned north on Seigel Street, they could have seen defendant’s track at an increasing distance west of the crossing; when 85 feet south of the south rail, 175 feet of the track west; when 64 feet south of the south rail, 220 feet of the track west. The jury might have found that the train had not reached either point, when the automobile was 64 feet south of the south rail, and decedents are presumed to have known that defendant’s train was required not to move at a greater speed than 6 miles an hour. Moreover, there were no witnesses to what they did after turning north, until observed within 20 feet from the south rail, — giving effect to the presumption that, in the meantime, they were exercising due care. •
We meet the inquiry whether Berger is to be conclusively adjudged to have been guilty of contributory negligence, or was that issue for the jury ? The additional facts should be stated: (1) The train was moving at a speed of 20 to 35 miles an hour; the automobile, 10 to 15 miles an hour. (2) One Oswald drove over the crossing, about 15 feet ahead of decedents, and, after crossing, motioned in warning. If the automobile was moving at 15 miles an hour, this would be 66 feet in 3 seconds; if at 10 miles an hour, 14.6 feet a second, — 65.7 feet in áy2 seconds. This is mentioned to indicate how brief a time the automobile required in moving to the crossing, after decedents might have looked up the track 220 feet, and have seen no train approaching. Might they have taken into consideration, then, that a
