154 Iowa 596 | Iowa | 1912
The case was before us upon former appeal. See 147 Iowa, 187. Reference may be had to such former opinion for the fact details. As far as is practicable, we will avoid repetition of these herein. The accident under inquiry occured in the unincorporated villiage of Toeterville on the 1st day of December about three o’clock in the afternoon. Defendant’s line of railway runs due east and west and intersects a north and south highway at right angles at a point fifty-seven feet east of its village depot. This highway constitued the only thoroughfare of the village. A few hundred feet west of the highway and along the line of the railway track were stockyards and an elevator. These and the depot were located on the north side of the main track. The plaintiff was driving from the stockyards and proceeding in a southeasterly direction on an “angling” road toward the crossing. His view was more or less obstructed by buildings already referred to and by certain box cars standing upon a switch- track on the north side of the main track. As his team was about to step upon the track, he observed a passenger train from the west so close upon him that it resulted in the collision complained of. The plaintiff charged in his petition that the train was being operated at an excessive rate of speed, and that the trainmen failed to give reasonable and adequate warning of the approach of the train; also that they failed to give the statutory signals. Plaintiff alleged also that .tbs defendant negligently permitted freight cars to be so placed upon the track as to obstruct his view. The answer was a general denial and a plea of contributory negligence.
That the placing of freight cars upon a side track so as to obstruct the view of a crossing would not be deemed as an independent ground of negligence is too plain to require argument. The authorities are practically uniform on this question. It was so held in effect upon the former appeal in this case. Artz v. C., R. I. & P. R. Co., 44 Iowa, 284; Funtson v. C., R. I. & P. R. Co., 61 Iowa, 452; Reed v. C., St. P., M. & O. R. Co., 74 Iowa, 188; Cordell v. N. Y. Central, 70 N. Y. 119 (26 Am. Rep. 550); Chicago, B. & Q. v. Roberts, 8 Neb. (Unof.) 425 (91 N. W. 707).
The real question before us at this point is whether it
In this argument appellant has quite overlooked other, portions of the same instruction, which we quote as follows: “If you find from the evidence introduced upon the trial that defendant’s employees did not give warning as herein referred to of the approach of the train to the crossing in question, then they were negligent in that respect. If they did give such warning, then in that respect they were not negligent. In determining whether or not defendant’s employees gave reasonable and adequate warning, it is proper for you to consider the speed at which said train ivas being-operated, the obstructions, if any, to the view of the approaching traveler, and all of the attendant circumstances shown by the evidence.” The instruction as given is in harmony with our former opinion. We have no occasion, therefore, for a further discussion. See, also, Kinyon v. C. N. W. Ry. Co., 118 Iowa, 349, and cases cited therein.
It appeared from the evidence that the train was traveling at a speed of from twenty-five to thirty-five miles an hour. The court did not permit the jury to find that any rate of speed was of itself negligent. The question was covered hy instruction No. 10, which was as follows: “No rate of speed in a train is in itself negligence as to a person upon, or about to go upon, a crossing; but it sometimes happens, when considered with reference to the circumstances of a particular place, that the rate of speed may be an important factor in determining whether or not due care has been exercised. Whether or not, in view of the location of this particular crossing near defendant’s depot, the obstructions, if any, to the view of the approaching train, and other attendant circumstances, the rate of speed in this instance has any tendency to indicate a want of reasonable care on the part of the defendant, or its employees, is for you to say from the evidence introduced upon the trial.” This instruction is in harmony with our former opinion. Nor doe£ appellant now cite any authorities from any jurisdiction which run counter to it.
Some other adverse rulings on minor matters of evidence are complained of. We find them to be without substantial merit.
The judgment entered below must be affirmed.