185 Iowa 867 | Iowa | 1919
I. The argument of counsel for appellant is confined almost entirely to the question of plaintiff’s alleged contributory negligence. The material facts appearing in the record are, in substance, as follows:
On the night of November 10, 1916, while plaintiff and another person were proceeding east in a Dodge touring car on one of the public streets of Mason City, his car collided with some freight cars which were being pushed north on defendant’s main track across said street. The train, according to the testimony of defendant’s witnesses, consisted of thirteen cars and an engine, which was attached to the south end of the train, but headed north. There was a residence south of the street, and about 30 feet west of de
For a considerable time prior to the accident, defendant had maintained an automatic electric signal gong at the crossing. It was located immediately west of the track, on the north line of the street; but on the occasion in question, it was out of order, and did not ring as defendant’s train approached the street. Plaintiff had frequently passed over the crossing in question, and knew of the automatic signaling device, but did not know that it was out of order. Both plaintiff and his companion observed, before attempting to cross the track, that the signal bell was not ringing. The testimony on behalf of plaintiff tended to show that the automobile approached the crossing at a speed of from 10 to 12 miles per hour, and that defendant’s train was being operated at around 16 miles per hour. Plaintiff and the other occupant of the car testified that no lights were visible upon any part of the train; that the same could not be seen, on account of the darkness; and that, although they were listening intently, they did not hear the movement of the train. On the other hand, defendant’s train crew testified that there was a brakeman with a lantern
It will be observed, from the foregoing statement of the evidence, that the jury could have found therefrom that plaintiff looked, when at least 100 feet west of the crossing, and again when within 40 feet thereof; that both occupants of the car listened intently, but did not hear the rattling of the train; that no lights were visible upon any part thereof; that, because of the darkness, they were unable to see it; and that they relied, to some extent, upon the failure of the automatic signaling device to give warning of the train’s approach; that the car with which the automobile collided did not come into view until it was revealed by the headlights of plaintiff’s automobile; and that he was then so close to the track that he was unable to stop his automobile in time to avoid the collision.
While plaintiff’s car was pretty thoroughly demolished, neither he nor his companion was thrown- from the seat of the automobile or injured. This fact tends strongly to corroborate plaintiff’s claim that he was driving his car at a moderate speed. The question of contributory negligence was clearly for the jury.
III. Exceptions were taken to other instructions, but they are not urged in argument upon this appeal. Since we find no error in the record, the judgment of the court below must be — Affirmed.