*1 592 Cheeley, Fuchs v. should have on opinion, bearing interpreta
Minnesota
285
no
356,
Minn.
ing in
[Kohlmier,
Kohlmier
v.
Inc. Mol
obligated
Home Insurance is
to defend Zen-
lenhauer,
126,
273 Minn.
this court expressly noted that the policy
being construed contained no severabili
ty-of-interests clause, 273 Minn.
N.W.2d 48. The implicit suggestion in
Kohlmier that might interpret court an employee exclusion clause more nar PAULSEN, Appellant, Ernest C. rowly were a severability-of-interests clause also contained the policy in DES MOINES RAILWAY UNION question had been explicitly made COMPANY, Appellee. case, 390, 398, Soo Line Minn. note No. 59670. 783. Because con clude that these dicta in former cases are Supreme Court of Iowa. consistent underwriting with the intent Feb. 1978. reflected in the severability clause and discussed in passage by Risjord
Austin, supra, we overruled the holding
in Fuchs that the severability clause *2 Krpan Baybayan, D. and Ronald A.
Larry Moines, Firm, for Mike Wilson Law Des appellant. Luchtel, E. Voights
L. and Keith R. Goode, McLaughlin, Emery & Nyemaster, O’Brien, Moines, appellee. Des McCORMICK, Justice. whether appeal question involves the Railway Com-
defendant Des Moines Union contributory proved its defense pany law in bar of action for plaintiff Ernest C. Paulsen’s crossing accident. damages arising from a verdict under in- Paulsen obtained submitting jury. that issue to the structions motion for Upon the railroad’s crossing. He looked verdict, traverse the the trial court notwithstanding and, none, ways seeing pro- on the both for trains the railroad entered it. were, matter of ceeded over as a injuries basis Paulsen’s by his failure caused proximately southeast corner of When he reached the on the occasion lookout maintain a dump was shown where to the lot Paulsen *3 sus- conditionally also The court involved. it He maneuvered his truck so the sand. motion railroad’s alternative tained the the load. He facing dumped north and was We reverse grounds. trial on several new the box. the truck forward clean pulled new the order for but affirm judgment approximately that he was point At trial. crossing. signed He a feet due east of began turning ticket and then notwithstanding weight I. The northwesterly to exit. truck had a considering a motion for When verdict. verdict, addition, turning circle. In a forklift notwithstanding a the wide operating was the lot. Various view the evidence truck required is on trial court materials, including pallets, piled were favorable to the verdict light in its most day A taken the next photograph whether it is contradicted. there. regardless of poles the evi- stacked in an east- telephone reasonable inference from shows Every lot, although at the aid of the west direction on the trial dence must be carried to Co., Inc., they Paulsen could not remember whether Honeggers’ Winter v. & verdict. (Iowa 1974). the date of the accident. Gas In deter- were there on 215 N.W.2d on building trial court erred in were located south of a mining pumps whether the lot, it neces- motion, examine the evi- the north end of the and was sustaining the pass south of them. Champlin sary manner. for Paulsen dence in the same Walker, truck, maneuvering As he turned light here. It will be recited that activity on the avoid the obstructions and lot, University point he arrived at a about two and employed by Paulsen was lengths a truck one-half truck north of the Company dump and Sand Gravel 15 feet east of the and somewhat more than driver. was a 1968tandem Chev- His truck tracks, heading southerly in a length 22 feet in dump rolet truck about parallel stopped rection to the tracks. He long a and 8 feet wide. box feet there, briefly employee, talked to a Forrest five feet wide. The cab was dispatcher, began called his and then 1,1972, Shortly before noon on June he was crossing. post drive toward the about 15 sand to premis- directed to deliver a load of prevented east of the tracks him from feet prem- es of Forrest and Associates. Those fairly west until he was close to the located beneath the Ninth ises were Street crossing. congested in a indus- viaduct in Des Moines trial area. The weather was mild and it was a clear day. open. The truck windows were Its the Forrest premises
Paulsen had been to engine operating at a normal noise prior three occasions. An indus- on two or level. Paulsen testified as follows about the railroad intersected spur trial track of happened what as he drove toward the direction, curving the lot in a north-south crossing: crossing. southwesterly I mirrors and looked. shortly just my at the lot after looked out Paulsen arrived that, part the lot from a I see was this like noon. He drove south onto All could truck building. was west of the As I turned the north-south road which became less. I come on long my tracks. He and left his truck more vision stopped I and find out down here. I come on to the track. enough to enter the office vision was thing. My parallel the sand. He was didn’t see a dump where he was to way. My sitting way. this truck was this told to deliver it to a site on the southeast truck, mirror on the my. He to his I looked out rear view corner of the lot. returned it set to see where right backed the east to hand side. I had up and turned toward I continued anything. I didn’t hear I could would be. my truck the wheels fact, I looked it. In look, I didn’t see beyond feet and three or four see about sudden, there side, that’s all I can see it. All of street and didn’t wheels on the clip for that coming pretty good The reason He was see back there. it was. kids cars and little many little I see him. evidently, why there is didn’t have to see whether you around running just forward of was on the cab impact you. are behind they of the box. It turned right front corner when his field of vision He described it off the track 30 or the truck and knocked tracks. toward the first started point of collision. 40 feet from All I point. at this I didn’t see no rail using engine The railroad had been rail on the far was this could see prior Just switch boxcars on the track. approach up as I come here. west engine heading the accident the switch hand way, my right up comes seat- engineer the track. The south on *4 up couple a of the truck comes corner engine. or west side of the right ed on the sitting rail —I am back inches. Then the and front was limited. His vision to the east got away and the rail tipped way, anything in those He could not see me. from last 50 feet before rections within the well to the front he was able to see He said not see Paul- reaching crossing. the He did passenger- the except the sides as and to did colliding with it and prior sen’s truck fur- interfered. Then he testified side door immediately it until know he had hit not ther: he heard someone after the accident when side, the all I right I looked out When shouting. about was this left rail and could see engine the employee estimated Forrest it, the left rail. just barely see that — he nor per at 25 miles hour. Neither speed Yes, which would Q. The left rail? A. the a or whistle. When * * Paulsen heard bell *. right be on the ap- it engine first saw the was employee crossing the and proceeded As he toward crossing feet north of the proximately 100 changed: his turn his field of vision began five and Paulsen’s truck was crossing my I toward the proceeded As trav- engine from the east rail. The feet the of vision less and less all field become the truck. striking feet after eled about 50 mirror and to the looking my time out the the seeking uphold In and the I come close to the track right. under on Iowa cases decided railroad relies kept I my of truck as part hand negligence stan- contributory a different closer, like turn getting got away, you it cases those than exists now. When dard car, your gets as car your a corner plain- on the the burden was were decided see the curb no more. up you there don’t cause of element of his prove tiff to as an it, it as you see don’t see you Later on any negli- of guilty he was not action that I didn’t see it at all. turn into it. you or any manner which contributed gence four miles traveling He said he was two to In injury damages. his or any degree if looking anyone and was to see an hour law, plac- the changed Legislature 1965 the because coming crossing over plead on the defendant ing the burden He were in the area. equipment and trucks negligent plaintiff prove and nothing heard other than listened but proximate was a negligence and that such sound of his own vehicle. damages. Acts injury cause of the or crossing at somewhat approached He 1; 619.17, The Code. G.A. ch. § § he was still as angle of an because more change make it aspects of this Two he the tracks. At the he reached finding as justify a than before to difficult through passen- could see to the north his is barred plaintiff -law that a a matter of window, he did not see the ger-side but contributory neg- of recovery from because his truck. Paulsen engine before it struck First, instead of the the defendant ligence. testified: crossing, but producing any particu bears the burden of evi not at plaintiff place points. lar nor at all proof ordinarily of on the issue. dence and burden Second, for the to determine whether he that the requirement a proper place making selected obser proximate be shown to be a negligence vation and otherwise used care injury damages imposes cause of the or safety. for his When the jury could find heavier burden than existed under the for that a traveler within a looked reasonable Chicago, mer rule. McDowell v. Milwau crossing, distance from the a court Co., will kee, R. St. Paul & Pacific F.2d law, ordinarily say, (8 1974). Consequently, Cir. cases decided guilty contributory negligence of be prece less value as under the old rule have cause he did not again look from some contributory Proving negligence dent. other designated point from which he defense as a matter of law is formidable might possibly probably or have discover task. ed the train. That some other course questions Ordinarily might have been better or safer or have are for the trier proximate cause establish, avoided the collision does not exceptional fact. cases does a Only party a matter contributory negligence. having proof the burden of on an issue A plaintiff judged is not to be by what establish it as a matter of law. Even when might now appear to have been the safer contradicted, dispute facts are not in or course. The law require perfect does not jury question engendered if reasonable only ordinary but care under the might minds draw different inferences *5 attendant circumstances. Nor does the from them. law specify precisely what must be done is Contributory negligence not to be Coonley exercise of such care. v. Low found as a matter of law unless it is so den, 731, 736-737, 234 Iowa 12 N.W.2d palpable, flagrant and manifest that no oth 874-875 er conclusion is reasonable. Ackerman v. In Coonley pointed the court also out that James, 824-825 N.W.2d duty by affected the traveler’s to compliance assume the railroad’s the purposes present law. For of the ap- It is to similarly difficult establish peal the railroad’s negligence has been es- proximate cause as a matter of law. Oster tablished. Railroad, foss v. Illinois Central 215 N.W.2d so, (Iowa 1974). In order to do the contends, however, railroad that The prove, defendant must Paulsen should not have the benefit of the not simply that the accident would not have “obstruction rule” because the obstruction plaintiff’s occurred but for the negligence to his vision was his own truck and hence plaintiff’s but that the conduct awas sub was of his own making. Assuming the bringing stantial factor in about the harm. limitation, subject obstruction rule is to this Kuhr, Pedersen v. 201 N.W.2d problem the with the contention here is (Iowa 1972). the jury maneuvering could find the put position which Paulsen’s in the truck Even under the former contributory neg- which limited his vision was caused at least standard, ligence question the was usually partly by circumstances which were not of for the jury when the traveler’s view of the his own creation. The circle of the railroad tracks was obstructed or there truck, lot, obstacles on the and equipment diverting were circumstances. The duty to operations beyond there were factors Paul- proper explained maintain a lookout was sen’s control which led to his choice of follows: jury say route. It was for the to whether A approaching traveler a railroad must negligent he was in these circumstances. by looking look when he can see. A required traveler is for approach Except to look for the effect of the fact his vi- ing vehicle, hampered by trains within a reasonable distance sion was his own for new of the motion trial. One in its most favorable tive light viewed evidence to find on which motion was sustained permit jury grounds to would Paulsen jury Be- of the to deliberate as he have. was the failure listened looked and required by would less than six hours as rule impeded fact his not cause the vision R.C.P., 203(a), returning before a verdict by have lack of necessarily been caused court on a five-sixths vote. care, do not believe the trial rendered due find the accident compelled at jury The case was submitted to the by to main- proximately caused his failure lunch for jury 11:50 a. m. recessed for say easy lookout. It proper tain a and, one hour after resum- he should now, by hindsight, aided deliberations, returned its five-sixths differently his truck have maneuvered p. 6:15 m. failed verdict at Thus approached have that he could for not six hours to deliberate less than well find jury might perpendicularly. rendering its five-sixths verdict as before him required to do so. due care rule is con- required by 203(a). This case this as law is say a matter of for a court Tuttle, our decision by trolled in Parker judges Coonley prohibits. to what do (Iowa 1977). appears conduct what now sustaining The trial court was correct in course, requires perfect a safer have been the railroad’s motion for new trial on this speci- care rather than ground. in the precisely fies what must be done also the motion on The court sustained care. exercise of due specifica- grounds relating submission was not free in the circumstances Paulsen against the railroad and tions of the risk a focus his entire attention on instructions on sufficiency of court’s crossing from the might approach train questionable It is whether those issues. obliged his con- spread north. He was grounds. preserved error on these other cern to risks of kinds other them to the extent We will address other rections from causes. provide guidance upon retrial. necessary duty to maintain a *6 duty of a at a move implies being watchful of the lookout care to crossing “is exercise reasonable the driver’s vehicle in relation ments of same; persons using injury avoid things seen and which could be dis other if, peculiar reason of or extraordi by ‘and in the cerned or seen exercise of surrounding crossing, nary circumstances requires watchfulness care. trainmen, ordinary pru to the and known per of the ordinarily prudent and attention signal to require would an alarm or dence Bradt v. Grell son in the circumstances. train, then its given by approaching be Construction, Inc., 336, .2d N.W in the would be but negligence; omission increases visibility Limited duty of such circumstances no such absence confronting operator. risks a vehicle ” Railway v. Hawkins Interurban arises.’ precautions commensu requires Due care 232, 238, 168 N.W. Company, 184 Iowa increased risk. we can rate with Chicago, (1918). v. 235-236 See Graves com all reasonable minds would be say Company, Railway Island & Pacific Rock to find pelled under the circumstances here 222 N.W. 207 Iowa contributory negligence defense was es purposes acknowledges, The railroad tablished. was suffi- the evidence appeal, of the the trial in sustain- Therefore court erred fail- specifications based on cient to submit not- the railroad’s motion for and fail- to maintain a lookout ure withstanding verdict. evi- a bell. ure to sound It contends specifica- support trial. to rule dence was insufficient II. New Pursuant whistle, Procedure, on failure sound Rules of Civil the trial court tions based speed. to warn and excessive conditionally granted the railroad’s alterna- failure relating bringing contention in about sounding plain the harm. Hence the whistle on a rests Des Moines ordinance tiff’s contributed to the acci proscribing blowing Kuhr, the whistle dent. “except in Pedersen v.
cases of immediate danger.” (Iowa 1972); (Second) An immediate Restatement Torts, danger exists when a collision threatened. 431 and 433. §§ Under the evidence jury question existed I freely expression subscribe to the in the regarding specification. Upon retrial majority opinion which describes the two specification should be submitted if the difficulties by anyone seeking faced a find- evidence again sufficient for the ing of contributory negligence as a matter find the exception applies. finding of law. Such a should not avail as a
The specification of failure to basis for warn has substitution a trial appellate or no basis apart under the record court of its factual findings for those of a alleged failures to sound jury. bell or whistle and Too often cases former times re- need not separately just be submitted. vealed such a misapplication of the join doctrine. I am glad renouncing Under principles explained in Haw such misapplications. Yet if the doctrine of kins Railway v. Interurban Company, su contributory negligence as a matter of law pra, believe the evidence was sufficient remains in any way viable I believe the to submit the specification of excessive facts in the instant case applica- demand its speed. tion. If the longer doctrine is no alive the We reverse the defendant majority say lay it to rest. but affirm granting of a new trial. I would affirm. PART; REVERSED IN AFFIRMED IN PART. UHLENHOPP, J., joins this dissent.
All except Justices concur HARRIS and
UNLENHOPP, JJ., who dissent.
HARRIS, Justice (dissenting).
The majority accurately states the facts
and governing principles but I believe it
reaches the wrong conclusion. I am con- plaintiff vinced contributorily negli- Iowa, Appellee, STATE of gent as a matter of law. By whatever route he chose or felt com-
pelled to follow as he approached the cross- Boyd RYDEL, Appellant. Jonathan *7 ing, plaintiff’s approach final was at an No. 59292. angle. He was aware of the crossing and box, knew his own truck because of the Supreme Court of Iowa. angle, obstructed his view toward the ap- Feb. 1978. proaching train. In spite of the obstruction of his truck box plaintiff drove onto the
crossing and the accident resulted. I am
convinced this was negligence as a matter
of law.
I am also convinced plaintiff’s negligence
as a matter of law contributed to the acci
dent in question. Clearly the accident
would not have occurred but for
negligence. In addition one must conclude
plaintiff’s conduct was a substantial factor