238 N.W. 703 | Iowa | 1931
[1] On September 18, 1929, about six o'clock in the morning, Byron F. Rosenberg, the plaintiff-appellant, when going to his work at the Des Moines Clay Company, endeavored to drive his Chevrolet four-door coach from his home southward over the double tracks of the Des Moines Railway Company, defendant-appellee. As the appellant was thus proceeding across the south or second track, an interurban car struck the Chevrolet coach and inflicted upon appellant the physical injuries and did the damage to the automobile of which complaint is here made. These double tracks (the one herein designated as the first, or north, and the other the second, or south), were maintained by the appellee Railway Company between the Des
[EDITORS' NOTE: PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.] *154 Moines business district northwestward to Urbandale, a village outside of the Des Moines city limits.
At the point of collision, the railway tracks were maintained on appellee's private right of way. Appellant, at the time in question, lived near this private right of way and had access to a public highway by using a private road over appellee's right of way. The understanding of the manner in which the private road ran from appellant's house to the railway tracks may be aided by the accompanying photograph.
It is the claim of appellant that on the morning in question, he drove his Chevrolet coach from the house southward over the private road down to the bridge shown in the above photograph. When in the center of this bridge, appellant claims to have made observation for possible oncoming cars or trains that might be traveling over either railroad track. While approaching the double tracks from his home, the first was the north, or outbound, track and the second the south, or inbound, track. From the center of the bridge where the observation is claimed to have been made, appellant said he could see a great distance down the outbound track, in the direction of the Des Moines business district, and knew such track was clear. In the other direction, (toward Urbandale) however, the appellant declares he could only see a distance of 300 feet because of a bank near the bridge and a curve in the tracks. With his line of vision thus limited, appellant maintains that he looked in that direction for an incoming car but saw none. Then he shifted his automobile into intermediate gear and proceeded slowly across the tracks. He was operating his car at a speed of about three miles per hour and could have stopped within a distance of four feet. Upon arriving at the first rail of the second track, appellant saw the interurban car and proceeded a foot or two farther when he was struck, as before explained.
According to appellant, the appellee was negligent in three respects, as follows: First, the interurban car was propelled at an excessive rate of speed; second, the motorman failed to keep a proper outlook; and, third, the motorman did not have the interurban car under control. Hence, appellant urges that the Municipal Court erred in directing a verdict in defendant's favor.
[2] Appellee, on the other hand, denies its own negligence, *155 but argues that even if there were such negligence, nevertheless appellant's contributory negligence is sufficient to bar a recovery. Consequently appellee insists that the municipal court's action is fully justified in the record.
One witness for the appellant testified that appellee's car was traveling 45 miles per hour when approaching the private right of way under consideration. Although this testimony is somewhat contradicted by previous statements made by the witness and is otherwise minimized and doubtful, nevertheless, for the purposes of this discussion, we will assume that the appellee's car was operated at a negligent rate of speed. There is no testimony sustaining appellant's claim that the motorman did not keep a proper outlook. Moreover, if the interurban car were not under control at the time in question, it was because the same traveled at an excessive rate of speed. No contention is made by appellant under the last clear chance rule. Therefore, the deciding question is narrowed to one of contributory negligence. Has appellant shown himself free therefrom? A review of the record compels a negative answer.
"The presence or absence of contributory negligence, generally speaking, is peculiarly a question for the jury. * * * Moreover, it is to be remembered that there are some instances where it is the province of the court, and not the jury, to judge whether or not the contributory negligence is such as to bar a recovery." Murphy v. Iowa Electric Company,
"If there is a conflict in the evidence as to what the person accused of contributory negligence did or did not do, the question is then one for the jury." Murphy v. Iowa Electric Company, (
For the purposes of this discussion, appellant's own version of his actions is considered to be the truth. Accordingly, under this theory there is no conflict in the evidence concerning what appellant did or did not do. Necessarily, then, no jury question can arise on this proposition. But a jury question may arise if men might fairly and reasonably differ concerning the result of appellant's actions.
"* * * even though it is known what was done by (the) *156
* * * individual * * *, yet if his conduct is such that there may fairly be different opinions with respect to it, and one man honestly and reasonably says it was in accord with ordinary prudence, while another, just as sincerely, and with equal reason, contends it was not, then there is a jury question." Murphy v. Iowa Electric Company, (
Measured by this test, did the municipal court properly hold, as a matter of law, that appellant was guilty of contributory negligence? That is the next problem.
Another photograph, here inserted, will reveal to the reader the position of the bridge, the private way across the railroad property, each of the railway tracks, and the claimed obstruction in appellant's line of vision:
[EDITORS' NOTE: PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.]
To further aid the understanding and reveal the surrounding circumstances, there is here set out a blue print, which, at the right, indicates the private road as a driveway: *157
[EDITORS' NOTE: SKETCH IS ELECTRONICALLY NON-TRANSFERRABLE.]
As before suggested, appellant testified that from the middle of the little bridge he could see down the inbound track (the second track) over which cars run from Urbandale to Des Moines, a distance of only 300 feet. The engineer who made the blue print, however, asserts that from the middle of that bridge an observer can see in the direction named as far as 500 feet. This witness, however, and appellant disagree concerning obscuring weeds on the bank at one side of the private way as an approach is made from the latter's house to the bridge. Such dispute is probably of the nature to present a jury question. So the discussion will proceed on the theory that appellant could see only 300 feet from the center of the bridge. Obviously, then, he did not have a view of the tracks beyond 300 feet in the Urbandale direction, but appellant understood that. Yet, from the time he left the center of the bridge until he reached the first rail of the second or inbound track, he made no further observation of any kind, although it was daylight. From the center of the bridge to the first rail of said second track is a distance of 25 1/2 feet. It is not claimed that appellant listened at any time either on the bridge or during the journey to the second railroad track, where the collision occurred.
[3] An endeavor is made to excuse appellant from making *158
further observations, or otherwise protecting himself, on the theory that it was necessary for him, because of the cool morning, to work the choke on the automobile. Much reliance is here placed upon Butterfield v. Chicago, R.I. P.R. Co.,
No precaution was taken by appellant for his own safety, although he anticipated an oncoming car. For all that he knew, an approaching car might have been rounding the curve although the same was unobservable when observations were made from the bridge. It is conceded by appellant that at a point "four or five feet" nearer the tracks from where the observation was actually made, he could have seen down the second track for a distance of 470 feet. Plainly the car would have been observable had such observation been made. (By this we do not infer that he should look at any particular place.) Witnesses for appellee, as well as a witness for the appellant, all of whom were passengers on the interurban car, stated that they saw the automobile coming around the obstructing bank when the interurban car was within less than 300 feet from the private crossing. These witnesses, according to the individual testifying, variously thus fixed the distance from the crossing at 225, 125, and 75 feet. We are conceding, however, that appellant's own testimony was sufficient to raise an issue on this proposition, and upon that basis the controversy is being decided.
During this discussion, it is to be remembered that appellant does not claim to have listened at any time. Consequently the only care he exercised was the single observation back 25 1/2 feet from the first rail of the inbound track. Nevertheless, it is said by appellant that his duty was fully performed because he made the observation at such a distance that there would have been safety had the interurban car been operated at a lawful *160
speed. To sustain this proposition, appellant cites Camp v. Chicago, Great Western Railway Co.,
[4] This is true, appellant further declares, because the observation required at an interurban crossing is not as rigid as that demanded for a steam railway crossing. On that proposition appellant cites Waring v. Dubuque Electric Co.,
In previous cases, we have said that the rule for observation at steam railway crossings does not apply in all its strictness to the care necessary when crossing an interurban railway on city streets. Waring v. Dubuque Electric Co., (
"* * * street cars are usually operated according to established time schedules, and their efficiency and value to the public demand that they be so operated. To require, whenever a person approaches the track, that they be stopped, or the speed slackened, until it is evident that the person will not be endangered by the running of the cars, would be to impose a serious, and, in many cases, an intolerable burden upon the railway corporation, and subject its patrons to annoying and injurious delays, without any substantial reason for so doing, or benefit of importance to any one."
What is there said concerning a street railway operating on the public streets, applies with more force to an interurban railway operating over its private right of way, where pedestrians and vehicles do not travel to and fro along the line, except at designated crossings.
While, of course, appellee knew of the private crossing and was therefore compelled to operate its cars with the precaution required by such knowledge, nevertheless duty did not demand that it stop its coaches or even slacken their speed just because perchance an automobile approached the crossing. Appellant could not presume that if he negligently drove upon the railway tracks the appellee would save him from injury. Watson v. Electric Co.,
Suppose, then, as before indicated, that the interurban car was traveling 24 miles per hour and appellant moving at the rate of three miles per hour, the interurban car would travel eight miles while appellant was traveling one mile. Necessarily, then, the interurban car would go 302 feet while appellant traveled the necessary distance. A collision, then, would have occurred had the interurban car, during the 300 feet in question, traveled at the reasonable rate of 24 miles per hour. It would not be negligent, under ordinary circumstances, in the absence of an ordinance limiting the speed, for such car to proceed at the rate of 24 miles per hour in the outlying district, where vehicles and pedestrians traverse the railroad private right of way at designated crossings only. Nothing here could indicate to appellant that such ordinary rule would not apply. There is no speed limit imposed by ordinance so far as the record discloses. A traveler being able to see an approaching car for a distance of at least 300 feet, the private crossing, while obstructed in the distance, is not what is ordinarily known as a blind crossing.
What might be the law under other facts, we do not now decide. In residence districts, automobiles are, under the law, frequently permitted to travel 25 miles per hour. Clearly, then, appellant, as a reasonably prudent man, could not under the conditions assume that the interurban car at the time in *163
question would proceed at a rate of speed less than 24 miles per hour. Under the supposition, therefore, it is demonstrated how negligent appellant was for proceeding across the second track without using his senses to discover an approaching car. That the defendant must use his senses under such circumstances is firmly established by this court. Barboe v. Sioux City Service Co.,
Obviously appellant did not use his senses, for he did not listen at any time. During the interurban's approach to the crossing, the motorman constantly rang the bell in order to warn motor vehicles that the interurban was approaching. Also appellant did not look after leaving the bridge while slowly traveling the distance previously mentioned. Of course, appellant was not required to keep a constant outlook. Perhaps, too, it was not incumbent upon him to look at any particular place, but having looked from the bridge and seeing only 300 feet, it surely behooved him to use his senses while proceeding across the track. See cases above cited. Also, as having some bearing upon the question, see Dean v. Chicago, B. Q.R. Co.,
Accordingly, the judgment of the Municipal Court should be, and hereby is, affirmed. — Affirmed.
FAVILLE, C.J., and EVANS, MORLING, and GRIMM, JJ., concur. *164