Thеse appeals are from judgments rendered on jury verdicts in actions brought by appellees, Ruan Transport Corporation and William D. Hawley, against the appellant, Chicago, Burlington & Quincy Railroad. Company, to recover damages sustained by appellees as the result of a collision between one of appellant’s passenger trains and a gasoline transport truck owned by appellee, Ruan Transport Corporation, and driven at the time of the collision by its employee, William D./Hawley. The transport truck was in two units, a tractor and a trailer tank loaded with 6,300 gallons of gasoline. The tractor had eight drive wheels on tandem axles -at the rear, each axle having a double wheel at either end. The combined length of the tractor and tank was 45 feet,'and when the tank was fully laden, as it was at the time of the accident, the total weight of the transport and load was about 60,000 pounds. The tractor was destroyed in the collision. The trailer tank was not injured. Hawley received serious and permanent injuries.
These appeals present the single question, whether under the law of Iowa Hawley, the driver of the truck transport, w-as guilty of contributory negligence barring recovery on behalf of either of the appellees.
The -accident occurred about 2:40 p. m. on a clear day at t^ie 28th Street crossing in the town of Bettendorf, Iowa. There are five railroad tracks at the 28th Street crossing, which for convenience may be ■referred to as -tracks 1, 2, 3, 4, -and 5. Track 2 i-s the main line on which the collision occurred. The other-s are sidetracks or -passing tracks. All of the tracks -are the property of the Davenport, Rock Island and Northwestern Railroad, аnd by arrangement with that company track 2 is used by -the appellant railr-oad company and by -other companies for -the operation of trains. The Davenport, Rock Island and Northwestern Railroad has exclusive charge and control of'all car movement and car placement on the sidetracks.
Twenty-eighth, the last street in iBettendorf, runs approximately north and south, and the railroad tracks east and west. The street crosses -the -tracks about 1 mile east of -the Bettendorf station. The roadway is gravel and -dirt and rough. The crossing is level. East of thе intersection track 2 is straight for approximately 1 mile.
The passenger -train which collided with the transport truck was westbound, and the truck at the time of the accident was being driven from the south to the north. It reached track 5 first and crossed that track and tracks 4 and 3 before -reaching track 2 on which the collision occurred. It is undisputed tha-t as Hawley approached the railroad tracks from the south the view -to the east of the crossing was completely obstructed by freight cars on tracks 3 and 4. On track 5 about 150 feet east of the crossing there was a switch еngine and a string of car-s of the Davenport Railroad waiting for the Burlington train -to pass on -track 2.
The car nearest the -crossing on track 3 stood approximately 75 or 80 feet -east of 28th Street. Just prior to -the -accident Hawley had loaded the trailer tank at the Standard Oil bulk plant which i-s located east of 28th Street and on the south side of the railroad tracks. Leaving -the Standard Oil plant H-awley drove a -short distance to the west parallel to the railroa-d t-racks until he approached 28th Street, where he was t-o make a sharp turn to the north to сro-s-s the tracks. As he approached thi-s turn, -he saw another truck coming from the north across the railroad tracks. He stopped until that truck had made the crossing and rounded the turn, since -the width of 'the roadway at the turn was not sufficient to permit the trucks to pa-s-s. Thereafter,
While his transport was stopped at the point mentioned Hawley unfolded his leather coat which he had in the cab of the tractor, removed from a pocket of the coat a supply of Copenhagen snuff, and, as he said, “took out a chew,” and replaced the coat. His testimony was that while this proceeding was in progress he was looking and listening for trains. After the operation just' described he placed his truck in “creeper” gear, the lowest driving gear with which his tractor was equipped, and рroceeded without stopping at a rate of 2 miles an hour until the front wheels of his tractor were over the north rail and the forward set of drive wheels on the tractor were approximately on the south rail of track 2. The distance traveled from the point where he stopped on approaching track 5 to the point reached when the -tractor was struck by the train was approximately 50 feet. The windows in the tractor cab were open. The noise of the moving transport in “creeper” gear was no greater than when running in high gear at 45 miles an hour.
Hawley said that his seat in the cab of his tractor was about 7% or 8 feet from the front bumper. The distance between the north rail of track 3 and the south rail of track 2 was about 9 feet, 9 inches. Although Hawley testified that he continually looked to the east and listened for a train approaching from the east from the time he started his tractor across track 5, he neither saw nor heard a train until the front bumper of his tractor was over the north •rail of track 2. When his tractor had reached this position, he heard the whistle of the train and .saw it for the first time at a point оn the track between 200 and 250 feet from him, approaching at a speed which he estimated at 50 miles -an hour. He stopped his tractor immediately, reversed gears, and while his unit was backing up it was struck by the train.
Hawley was thoroughly familiar with this crossing, having driven his truck across it many times and having crossed it once on the day of the accident. He knew of the presence of the cars on the sidetracks which obscured his view of trains approaching on track 2. He knew that he could not see a train coming from the east for a distance of more than 75 feet from the crossing until the front bumper of his tractor was within 1 or 2 feet of track 2. He knew that the cars on track 3 which prevented him from seeing the train also made it impossible for the enginemen on the train to see him until the front end of his truck had cleared the north rail of track 3. He knew that a number of regularly scheduled passenger and freight trains passed over the crossing on track 2. He knew that the train which struck him was due at the crossing as he approached it. On direct examination he testified that he was looking east because he knew the train that struck him was due along there. On cross еxamination he modified this statement by saying that he knew when this particular train was due, that he was always on the lookout for it, and that to his knowledge it had not passed the crossing at the time he approached track 2.
The appellees’ evidence was that the 28th Street crossing was used by the tank transports serving three oil company plants south of the railroad tracks and east of 28th Street. It was also crossed regularly by employees of these and other industrial plants in that vicinity in their private cars. An employee of the Ruan Transport Corporation tеstified that trucks operated by that company probably crossed the tracks on 28th Street 75 times a day. There was some evidence that the whistle was not sounded until the tfain was within 200 or 250 feet of the crossing. Of those who testified for appellees, Hawley was the only one who had any reason to be listening for the whistle. The witnesses who testified for the appellees concerning the sounding of the whistle or ringing of the bell on the engine merely said that they did not hear a whistle or bell until the engine was within 200 or 250 feet of the -crossing. Witnesses for the appellant, not connected with еither party to the litigation, heard the whis
Crites, who was the driver of the truck which passed over the crossing just before the accident, saw the train аbout % mile distant when he came over the crossing. He did not say whether he had heard the whistle as he came over the crossing. He said that, when he saw Hawley start his truck after stopping south of track 5, he knew that the train was approaching and that Hawley was in danger of being struck. He stopped the truck he was driving and watched Hawley drive on the track in front of the train. He saw smoke or steam coming from the 'smokestack of the engine and heard the whistle when the engine was 200 to 250 feet from the crossing.
The engineer and fireman and conductor of the train testified that the rеquired crossing signals were given as the train approached 28th Street, that the bell was ringing continuously, and that the view of the engineer and fireman was obstructed by the same cars which cut off the view of Hawley. The enginemen saw Hawley’s truck come out from behind the cars on ■track 3 when the train was 150 or 200 feet away from the crossing. The engineer immediately applied the brakes in emergency and sounded the whistle, but was unable to ■stop before the collision occurred. He testified that the train was stopped as soon as a stop could have been made under the circumstances. All of the train crew estimated the speed of the train at about 40 miles an hour. A witness for appellees estimated the speed of the train at 50 miles an hour at least.
There is no law of Iowa regulating the speed of trains at the point of the accident. There was no evidence that the speed of the train was greater than its usual speed in the vicinity of the crossing.
The court submitted to the jury the question, whether the railroad company was negligent in operating the train at an unreasonable and excessive speed and in failing to givе the proper signals of the approaching train by whistle or bell, in view of the fact that the view at the crossing was obscured by cars on tracks 3 and 4, and that the railroad company knew or should have known that the crossing was a particularly dangerous one because of the heavy traffic moving across it. See Mast v. Illinois Central R. Co., D.C.N.D.Iowa,
Under Iowa law the burden was upon the appellee in each case to establish that Hawley was not guilty of negligence directly contributing in any manner or in any degree to the collision. “Contributory negligence is not a defense. Its absence is a matter to be pleaded and proven to justify recovery.” Nurnburg v. Joyce,
The Iowa cases dealing with the question under discussion are legion. Nothing is to be gained by an attempt to reconcile all of them on the facts. Seе the majority and dissenting opinions in Coonley v. Lowden,
The Iowa cases are uniform in holding that a person approaching a railroad track, a known place of danger, where trains may be expected to pass at any time, is bound in the exеrcise of common prudence to look and listen before going upon the track. “The duty is placed on the driver of an automobile to look and listen for trains, and it was one of plaintiff’s duties to look at the place where, by looking, she could have seen, and by listening, she could have heard * * Darden v. Chicago Northwestern R. Co.,
Kinney v. Larsen, supra, decided April 16, 1948, the latest decision of the Iowa Supreme Court on the question here, is authority for the statement that as a general rule the Iowa court has held that, where the motorist’s view of the crossing was so obstructed as to render it impossible or difficult to learn of the approach of the train or where there were present “diverting circumstances” which would tend to throw a motorist off his guard, the question of contributory negligence of the motorist is ordinarily for the jury.
It is clear, however, from all Iowa cases that the application of the general rule depends upon the particular facts of each case. In Scherer v. Scandrett,
In Coonley v. Lowden, supra, reversal was asked because of the refusal of the trial court to give the following instruction: “If the view is obstructed to his knowledge to such extent that ordinary cаre requires that his vehicle be stopped before going upon the track, then a failure to stop such vehicle constitutes contributory negligence.”
In holding the refusal to give the instruction not erroneous, the court said: “In view of the instructions given, the ruling was not error. The jury was told among other things that plaintiff was required to take such steps for ‘his own safety as would any person of ordinary prudence under like circumstances; such a person must realize he is approaching a danger zone and bring his -car under corresponding control; if there is danger of collision it is fоr the motorist to stop and wait until the train ha-s passed in safety; ordinary care is commensurate with the danger involved, if the danger is great, the care to be exercised must be great; reasonable care in approaching a railroad crossing is a high degree of care; a person is not permitted to gamble with fate or assume on general principles ■that he can cross with safety. These instructions were sufficient.”
From the great number of Iowa cases cited by counsel for the respective parties,
In the Dean case the facts were that Dean approached the crossing from .the south at a speed of from 8 to 10 miles an hour until within 4 feet of the railroad ■track when he reduced his speed to 3 or 4 miles an hour, continuing over the track without stopping. Dean was sitting apprоximately 7 feet from the front end of his car. His view of the track in the direction from which the train was coming was completely obscured until he was within 3 or 4 feet of the south rail of the track. Like Hawley in the present case, Dean was thoroughly familiar with all the conditions existing at the crossing, having used it for a considerable time prior to the accident. He could have stopped his car within 3 or 4 feet. He did not stop and did not hear the train which struck him. As in the present case, there was evidence that the whistle on the engine was not sounded nor the bell rung as the train apprоached the crossing. In the course of the opinion (
In holding Dean guilty of contributory •negligence barring recovery in an action against the railroad company, the court stated the Iowa rule as follows,
The Dean case has never been expressly ■overruled by any later decision of the Iowa Supreme Court. In the opinion four earlier
In the Bush case plaintiff was the driver of a truck hauling brick from a freight car on a sidetrack near the crossing at which his -truck was struck by a passenger -train. There was evidence that the tra-in was proceeding at -an excessive rate of speed and that the proper warning signals were not given as it approached -the crossing. There was a -string of 6 or 8 box cars sitting on the sidetrack west of the crossing and 100 to 125 feet distant from the crossing.
The ev-idence showed that when Bush reached the crossing where the accideiit occurred he -stopped his truck and looked to the west. The point at which he stopped was about 12 feet from the main line track where the collision occurred. Bush -testified that the box cars on the sidetrack cut off 'his view to the west, that it was necessary because of the rough crossing and be ■cause he was driving a heav-ily laden truck across the sidetrack to concentrate all his attention upon driving the truck. The court held the question of Bush’s contributory negligence for the jury saying: “Certainly this court cannot say that a man is negligent as a matter of law if he stops, looks, and listens when only 12 feet from the tracks, -and his view is obstructed at that point. We base our conclusion upon •the fact that reasonable men would disаgree as to the question of appellee’s right to recovér.”
The Bjish and Dean cases are distinguishable on the facts in that Bush stopped, looked, and listened 12 feet from the crossing, while Dean did not stop before going on the railroad tracks.
When the evidence in this case is read in the light most favorable to appellees, giving them the benefit of every inference which the jury might reasonably have drawn from the testimony of all the witnesses, -the conclusion is inescapable that Hawley was guilty of contributory negligence as a matter of law if the rule announcеd in the Dean case is still the law in Iowa. But, conceding, as appellees contend, that the Dean case has been modified by later Iowa decisions, the fact which distinguishes this case from all other Iowa cases which counsel has brought to our attention or which our research has found is that Hawley knew that the train which struck his transport was due at the time hé approached track 2. He was driving a heavily laden transport, its tank filled with 6,300 gallons of highly inflammable and explosive gasoline. The transport was 45 feet long. Its total weight was 60,000 pounds. It was moving at a speed of 2 milе-s an hour, slightly under 3 feet per second. Hawley not only knew that the train was due at the crossing at most any moment, but he also knew what kind of •a train it was, and from past familiarity with it he had some idea of the speed with which it approached the crossing. He knew that it was late. He knew that as he crossed track 3 'he could not see more than 75 feet to the east until the bumper on the front of his transport was very near track 2. He knew that the enginemen on a train approaching at 40 to 50 miles an hour could not discover his approach to the crossing until the front end of his truсk had passed the freight cars on track 3, and that, if at that time the train was several hundred feet distant from the crossing where he could not see it, a collision was inevitable if he proceeded over the crossing without stopping.
Hawley must have known the terrible -con-sequences likely to result to him and the trainmen and possibly the passengers on the train from a collision between the train and a tank full of gasoline. And the fact is that Hawley did not look when he could have looked, just before driving his tractor
But we need not debate the question of the present status of the Dean case, for ■under an Iowa statute not involved in any other case as yet decided by the Iowa Supreme Court and never construed by that court, Hawley was required to stop before .going over the crossing at a point where by looking and listening he could know that it .was safe to proceed. Section 321.343, Code of Iowa, 1946, provides: “The driver of any motor vehicle carrying passengers for hire, or of any school bus carrying any school child, or of any vehicle carrying explosive substances or flammable liquids as a cargo or part of a cargo, before crossing at grade any ¡track or tracks of a railroad, shall stop such vehicle within fifty feet but ■not less thаn ten feet from the nearest rail of such railroad and while so stopped shall listen and look in both directions along such track for any approaching train, and for signals indicating .the approach of a train ■* * ‘* and shall not proceed until he can •do so safely.”
The purpose of this statute .is •self-evident. It is the legislature’s command that the driver of ‘one of the vehicles •described shall exercise a degree of care .above and beyond that required of the driver of other vehicles at railroad crossings. In the light of the Iowa cases concerning relative rights of motorist and railroad at railroad crossings, this statute must be read to mean that the driver of one of ¡the vehicles described shall stop within the distances specified where by looking he can ■see and by listening he can hear. The command is that the driver shall not proceed until he knows that to proceed is safe. Nothing less than the undivided attention of the driver to» looking and listening is compliance with the statute. If .it could be •said that Hawley made a literal compliance with the requirement of the statute as to stopping before crossing, his own testimony shows that while he stopped he did not give his undivided attention to looking and listening for trains. He had no right to assume what he could not know. We think the evidence shows beyond question that if Hawley had stopped and looked and listened at a point on track 3 where he had a view to the east of 75 feet and where he could have heard the train, the collision would not have occurred. With all respect for the decision of the learned trial judge (Russell v. Turner, 8 Cir.,
The judgments appealed from are reversed, and the cases are remanded to'the district court with directions to dismiss the complaints. ,