193 Iowa 323 | Iowa | 1921
— The accident occurred in the town of Knoxville, Iowa, at the intersection of Seventh Street, extending north and south, and the main track of defendant’s railway, extending east and west. West of this crossing and on the north side of the railway track was the plant of the Knoxville Clay Products Company, spoken of in the record as the “tile works,” or “tile plant,” consisting of a shed, office, and several kilns. A driveway entrance to this plant extended from Seventh Street, at a point 80 feet north of the crossing, west to the north side of the buildings, and parallel to the track. The works were in operation, and the deceased, with Murphy, an employee, was delivering coal to the kilns. In performing this service, they made use of an auto truck driven by Murphy. On the day in question, after delivering a load of coal, they undertook the return trip, going east along the driveway to Seventh Street, thence south across the track. As they reached Seventh, a witness, Urban Hill, driving an auto to the south, passed immediately in front of them. Murphy checked the speed of the truck, to permit Hill to take the lead, then, turning in immediately behind him, followed the auto to the crossing. Hill crossed in safety; but, as Murphy’s truck entered upon the track, it was struck by a train moving eastward. The deceased was badly injured, both arms being broken, and he sustained other wounds and bruises. Murphy was not seriously injured, but the truck was ruined. In this action to recover damages, the defendant is charged with negligence as follows: (1) In failing to give warning or signal of the train’s approach to the crossing; (2) in operating its train at an excessive speed, in violation of a city ordinance; (3) in operating its train at a dangerous rate of speed where the view of the crossing was obstructed; and (4) in operating its train with cars ahead of the engine, without watchman or guard placed in front.
The defendant denied the charges of negligence, and alleged contributory negligence on the part of the deceased.
There was a jury trial. At the close of the plaintiff’s testimony in chief, defendant moved for a directed verdict in its favor, because of the insufficiency of the evidence to sustain the charge of negligence, and on the further ground that deceased was chargeable with contributory negligence, as a matter of
“I thought we had plenty of time to make the crossing at the regular rate of speed, the way trains usually travel there. I did not look, after that, because I thought we would have plenty of time for the crossing. I always .looked and listened for the train before I made the turn. After we turned into Seventh Street, we probably averaged 8 to 10 miles an hour.”
If his estimate of the distance traveled after looking west, 40 feet, is right, or even if counsel for defendant be correct in their insistence that it was 70 feet, the truck would cover that distance in not to exceed three or four seconds; and it would be a very drastic holding to say that a driver guiding and man
Referring to the Barrett case, upon this question; counsel for appellant dispose of it by declaring that “it is finally at rest,” and express the desire to “let it rest in peace.” But if it is proposed to bury in oblivion this, our latest pronouncement on the law of contributory negligence in crossing cases, the grave must be made wide enough and deep enough to receive and hide the 50 or more other cases in which the Barrett case has its foundation and support. The arguments urged by counsel have but one logical conclusion, and that is that a person using a public railway crossing must assume all the risk of its negligent or reckless misuse by the company, if by any possible measure of caution the danger can be discovered and avoided. That such is not the law is too manifest for discussion. It may be, as
"We find no error in the ruling complained of. That the crossing -was within the city is admitted, though it appears to be near the boundary line. Seventh Street is one of the principal streets or avenues of connection between the main part of the city and the county highway system, and is largely used. The tile works employ 30 hands, who use this route; customers and persons having business with the Products 'Company approach it and leave it over this street; the railway company maintains a siding, apparently to facilitate shipments to and from the works; the land on the south side of the track is cut up into small acreage tracts, on which there are a number oE homes. We see no good reason for saying that the crossing thus located and thus surrounded does not come within the reasonable scope of the protection provided by the ordinance. There ivas no such showing of facts as -would justify either court or jury in finding that the ordinance was invalid, or that the defendant was exempted from its observance. Larkin v. Burlington, C. R. & N. R. Co., 85 Iowa 492.
We find no reversible error in the record, and the judgment of the district court is — Affirmed.