184 Iowa 232 | Iowa | 1918
The accident occurred on the afternoon of July 13, 1913. Plaintiff was driving a small two-cylinder Maxwell car, going west on the River-to-River Road, and the car with which he collided was an extra, proceeding eastward to Mitchellville. The interurban cars, when operated over this line on schedule time, were run one hour and ten minutes apart. The regular eastbound car had passed plain-tiff on the highway somewhat less than two miles east of the crossing. The track of defendant’s railway, west of the crossing, passes through a cut from 2% to 4 feet in depth. The surface of the ground, however, is about level, from the crossing west for a distance of 125 feet, after which there is a decline to the west. Plaintiff was a man of small stature, being but 5 feet and 5 inches in height. The sun was shining brightly at the time of the accident, and a slight wind was blowing from the south. Charles Urfer, W. H. Keister, who sat in the front seat, and another man who
Plaintiff testified that he was traveling west- in the main traveled portion of the highway; and that the point where he turned therefrom toward the crossing was from 50 to 60 feet southeast therefrom; that he then looked west, and again when about 16 feet from the defendant’s track, and did not see the defendant’s car approaching; that he saw the car when the front wheels of his automobile were about on the crossing; that he attempted to reverse his car, but, believing he ivould be unable to avoid a collision, went forward, and the car collided with the rear of his automobile, throwing him a considerable distance against the right of way fence, severely injuring him. No warning of the approach of the interurban car was sounded until plaintiff was near the tracks.
There is some conflict in the testimony as to the exact location of plaintiff’s automobile, and also of the interurban car, when the warning was given. Keister testified that defendant’s car was, perhaps, 200 feet west of the crossing, and plaintiff’s automobile within 10 or 12 feet south of the track, when he heard two sharp blasts of the whistle. Urfer, the other occupant of the car, who was called as a witness, testified that the interurban car was not over 25, 50, or, maybe, 75 feet from the crossing when he first saw it, and that Hawkins was just about approaching the track, when he heard the whistle. Hammer testified that he- saw the automobile when it was turning from the highway north into the Alexander road, and that the interurban car was pretty close to the crossing when the auto
The reason assigned by plaintiff for not seeing the interurban car was that his view was obstructed by the wing fence and tall weeds and grass in close proximity thereto, and along defendant’s right of way fence for a considerable distance west. He also claimed that the defective condition of the crossing above stated made it necessary for him to exercise care in passing over the same with his automobile, and that his attention was, therefore, attracted toward the crossing. There is some evidence that the road was a few inches lower at the crossing than on either side thereof.
Keister further testified that he made observations from the car in which he was riding, and that he plainly saw the interurban car approaching the crossing, for a ¿onsiderable distance before the whistle was sounded. Later, observations were made, on behalf of defendant, of the crossing, and photographs and measurements were introduced in evidence for the purpose of showing that the car with which plaintiff collided could have been seen from the point where he turned from the highway toward the crossing for a distance of 463 feet, and from a point 28 feet from the crossing a distance of 433 feet, and from a point 10 feet South of the crossing for a distance of 759 feet.
I. The grounds of negligence submitted by the court were stated in its instructions as follows:
“That the defendant corporation was negligent in that it failed to give proper or adequate signal or warning of the approach of said interurban car from the west at a reasonable and proper distance from said Alexander crossing, and failed to exercise ordinary care and diligence to warn the plaintiff of the approach of said interurban car.”
Appellant contends that the evidence wholly failed to establish negligence upon its part, and that it appears therefrom that plaintiff was clearly guilty of contributory negligence. Tt is conceded that the gong was not sounded, nor whistle blown, until the motorman discovered plaintiff closely approaching the crossing. As appears from the foregoing statement, the automobile must have been very close to the crossing, and the interurban car not to exceed 200 feet therefrom, and the jury may have found from the evidence of the motorman that it was less than 100 feet from the crossing when the warning was given. ■
The statute requiring the defendant to ring a bell or blow a whistle, upon approaching a highway crossing, is
The conductor testified that he saw plaintiff when he was from 50 to 75 feet east of the crossing', and that he saw him turn the corner and drive toward the crossing; that plaintiff was in plain view all of the time after he first saw him; and that plaintiff did not look toward the interurban car after witness saw him. The motorman testified that, when he first saw plaintiff, his car was 200 or 3Ú0 feet west of the crossing, and that, after he saw plaintiff turn in, he sounded the whistle and applied the air brake. He gave it as his judgment that the interurban car traveled about 150 feet after he applied the air brake. The car was stopped about 75 to 100 feet east of the crossing.
Counsel for appellant argue that, as travel upon the River-to-River Road is very extensive, and the crossing in question but comparatively little used, no duty rested upon the servants in charge of its car to sound a signal or give warning, until plaintiff turned to go over the crossing; that they could not presume that he would leave the highway and go upon the crossing. There is evidence that thick, tall weeds and grass had grown up along the wing and right
While there is much conflict in the evidence as to the effect of the grass and other obstructions complained of, yet the question whether the safety of persons using a crossing so situated required the sounding of the whistle or ringing of the bell, or some other warning of the approach of the car, was for the jury.
“If ordinary prudence exacted that such precaution be taken for the safety of persons approaching this private crossing, it must have been taken by defendant, even though not exacted by statute.” Wiese v. Chicago G. W. R. Co., supra.
The condition of the crossing, the presence of tall grass and weeds along the fences, and the claim of the conductor and motorman that they saw plaintiff approaching the crossing in his automobile in the manner shown, may well have justified the jury in finding that warning, in time to prevent the collision, should have been given.
The .jury may have found that warning was given about the time the front end of plaintiff’s car reached the south rail, and when the interurban car was within 75 feet of the crossing, and that the claim of the conductor and motorman that they could, and did, see plaintiff from the time he started to turn north into the Alexander road, was improbable from the fact that if, as the conductor testified, plaintiff did not look in the direction of the approaching car, the motorman would have given warning before plain
In Schulte v. Chicago, M. & St. P. R. Co., supra, the court said:
“The traveler is held to the duty of looking and listening for approaching trains within a reasonable distance from the crossing, and, if this has been done, it is for the jury to say whether he was bound, in the exercise 'of ordinary care, to stop and look and listen, or to look and listen without stopping, at some other point nearer or farther therefrom.”
In Hartman v. Chicago G. W. R. Co., supra, the court said:
“It is easy to say, and it is a correct proposition, that a person approaching a railway crossing must bear in mind*242 that it is a place of danger, and be vigilant to discover the approach óf trains, and use reasonable care to avoid injury therefrom; but whether such reasonable care requires him to stop,'look, and listen, or whether, having done so, he must stop, look, and listen again, whether he may place any reliance on the absence of danger signals, or upon any other given fact or circumstance, depend" so much upon the peculiar conditions by which he is surrounded, that, save in eases exceptionally free from doubt, the question must be left to the answer of the jury.”
Many cases are cited from this and other jurisdictions by counsel for appellant in their brief in which it was held that plaintiff was guilty of contributory negligence in failing to properly observe Ms duty in approaching a railway crossing; but.in many of the cases cited, the negligence of the plaintiff was apparent, and in others, the facts distinguish the cases from the case at bar. . It will serve no useful purpose to extend this opinion by reviewing the cases in which contributory negligence of the plaintiff was held to have existed as a matter of law. While the crossing in question was private, it was open from the highway to the north, and furnished the only means of ingress and egress to and from the premises of Alexander from the highway. Its use may not have been extensive, but it must have been known to the servants of defendant that travelers were, nevertheless, likely at .any time to be thereon. There was such conflict in the evidence upon the question of plaintiff’s negligence that reasonable minds, searching for the truth, might differ as to "the correct conclusion to be drawn therefrom ; and we' are, therefore, constrained to hold that the district court did not .commit error in submitting the case to the jury.
The court, in its eighth instruction, advised the jury that: (
“The rights of plaintiff and defendant, at the railroad crossing in question, were equal, subject to the precedence which the heavy and rapidly moving interurban cars may require when both parties approach the' crossing at the same time.”
The appellant requested the court, in substance, to instruct the jury that defendant had the right of way over the crossing, and that it was the duty of plaintiff to so approach the same as to yield such right to the defendant, and to have his automobile under control and moving at such a reasonable rate of speed as that he could stop his car and avoid accident. The instruction given is in line with our holding in Ressler v. Wabash R. Co., supra, and evidently based thereon. Other requested instructions related to the care and diligence required of plaintiff in approaching a private crossing; but the court, in its ninth and other instructions, fully and accurately stated the law, and submitted to the jury the question of plaintiff’s duty. The thought of the requested instruction is fully embodied in the court’s charge; likewise, we are of the opinion that others of the requested instructions, defining the duty of plaintiff to look and listen upon approaching the crossing, to have his automobile under control, and defining contributory negligence, were sufficiently covered by the instructions given. To consider each of the alleged errors in the refusal of the court to give the offered instructions, would unduly extend this opinion. Suffice it to say that we
Counsel for appellant' stoutly maintain that the verdict is grossly excessive, while, on the other hand, counsel for appellee insists that plaintiff’s injuries are of a very serious, permanent nature, and that the greater opportunity of the court and jury to observe his appearance and condition are matters that should be given great weight by this court in determining whether there should be a reversal on account of the allowance of excessive damages by the jury. Witnesses who have long known plaintiff, including the postmaster from whose office he works, testified that he was not able to perform as much labor, or as expeditiously, as before the injury, and that he appeared to suffer pain in his neck.
There would seem to be no doubt that one or more vertebrae in plaintiff’s neck were injured, but whether the same is permanent, the evidence leaves in doubt. While the nature and extent of his injuries were questions of fact, to be submitted to the jury, we cannot approve the verdict in this case. It is true, there is no fixed rule for determining the amount of damages to be awarded in oases of this character. It is obvious that the amount found by the jury greatly exceeds the damages shown. The extent to which his earning capacity may have been impaired in other lines of work, does not, of course, appear, as he has been
Upon condition, therefore, that plaintiff file his written consent in this court that the judgment may be reduced to $5,000, the same will be affirmed; but unless such consent is filed, the judgment will stand reversed. The costs of this appeal, in the event plaintiff files an ’election to accept the judgment as reduced, will be taxed to appellant; otherwise, to appellee. — Affirmed on condition.