195 Iowa 410 | Iowa | 1923
Appellant concedes that plaintiff made a case for the jury, in so far as the petition charges negligence in fail
At the place in question, the natural surface of the ground is somewhat rough and uneven. The crossing is in a cut, both track and highway being lower than the natural contour of the surface. The embankment of the cut is about ten feet higher than the track, and the shoulder of this bank is crowned by a growth of weeds within the right of way, and of weeds and growing corn outside. To one approaching the crossing along the highway as did the deceased, the railway was concealed from view until within some 70 or 80 feet of the track, from which point only about 150 feet of the track was in sight. In the early evening of the day in question, the deceased, a young, unmarried man, was driving a small, single-seated, low-hung Saxon roadster along this highway, in the direction of the crossing. When within about two and a half miles of the crossing, he was overtaken by two other young men, Dotson and Potts, driving a larger car. At the sound of their horn, deceased allowed them to take the lead. From this point until the instant of .the collision on the crossing, no living witness undertakes to say what, if any, care or precaution was taken by deceased in approaching the scene of the accident. Neither Potts nor Dotson looked -back until after their own narrow escape, to which we shall soon refer; the engineer upon defendant’s locomotive did not see the deceased at all until he was struck; and the fireman saw him only for an instant, which he estimated at about two seconds. This witness estimates the speed of the train at 35 to 40 miles per hour. Dotson and Potts estimate their own speed in approaching the crossing at 15 miles per hour, and say that, as they approached, they were paying attention, looking and listening to ascertain if any train was coming; that no alarm, or signal was given; and that the approach of the train was first indicated by the smoke rising above the intervening hill from the locomotive. This discovery they say was not made until they were within 35 or 40 feet of the crossing, when the risk
“Somewhere between a point 84 feet west of the crossing and 40 feet west of the crossing it was the duty of the deceased to look for the train, and to continue to look and listen until he ascertained there was no danger, and to have his automobile under control, and not to rush upon the track in front of the train. ’ ’
It is much easier to frame a rule which sounds well to the ear as an abstract proposition than it is to make practical application of it to every concrete condition of fact. Take, for instance, the case- before us. According to the estimate of defendant’s witnesses, its train shot out from the screening bank at a rate of 35 to 40 miles per hour, without the required warning. Potts and Dotson estimate the distance of the train when first seen at 150 feet. It would traverse that distance in considerably less than three seconds. The deceased, being the last to emerge from the cut, would probably be a second later to discover the peril, and at the most liberal estimate of time, he had the small margin of probably not more than two seconds in which to marshal his faculties and insure his safety. The fireman, the only witness ¿ble to speak to the point at all, says he thinks the unfortunate young man did, for an instant, try to stop, and that he did turn slightly to the left, but was caught about midway on the track. The law does not, we think, authorize the court to hold that a traveler injured by the negligence of the company under such circumstances is to be conclusively charged with contributory fault.
Counsel have devoted their brief in part to a criticism of the court’s charge to the jury and its refusal to give certain requested instructions. We have examined the record in this respect with care, and find no reversible error. In so far as the
The judgment appealed from is — Affirmed.