187 Iowa 994 | Iowa | 1919
The negligence alleged was that defendants were running the train at an unlawful and excessive speed; that defendants failed to ring the bell or blow the whistle; that they failed to provide a flagman, gates, or any device to warn persons of the approach of a train. The motion to direct a verdict was on the ground that the evidence shows, without dispute, that plaintiff was guilty of contributory negligence, as a matter of law. Appellant has argued at some length the question as to the negligence of the defendants. It may be conceded that, on this point, the evidence was sufficient to take the case to the jury. The motion for a directed verdict was sustained, on the ground that plaintiff was guilty of contributory negligence, and this seems to be the only question in the case. It appears that plaintiff, a boy 16 years old, was'-riding on the rear seat of a motorcycle, as the guest of Sillick, who was 24 years old. Sillick, the owner, was operating the machine from the front seat. They had come into Des Moines from
“I remember when Fred [Sillick] swerved first, he made a sudden turn, and I knew something was wrong, but
He did not at any time look to the south, and did not see the train at any time before the collision. When the engine cáme into the street, the motorcycle was about 60 feet from the point of the collision. The driver of the motorcycle did not see the train until the engine was on the paved portion of the street or crossing. The motorcycle struck the baggage car, the first car back of the engine; There is evidence that the train was going about 30 miles an hour. Appellant argues that the train would travel the distance of 208 feet in a fraction over 4' seconds, and the motorcycle, going 16 miles an hour, would travel the 48 feet in a fraction over 2 seconds. If the estimates as to the speed of both the train and motorcycle were exact, this would have given plaintiff a margin of 2 seconds to get across. A very close margin, at the best, and the chances would be hazardous.
We shall set out a little more fully the testimony of Sillick, the driver.
“I don’t know how fast I was going when I first saw the train; I had slowed down, — I couldn’t say, — probably 3 or 4 miles an hour. I was probably traveling 13 or 14 miles an hour, at the time I first saw the train. The engine was then occupying a portion of the street, I didn’t hit the engine; the engine had gotten by me before I struck. I can’t put any estimate on the distance I was from the track when I first saw the engine. I put the brake on practically as soon as I saw the train. The brake took hold immediately on putting it on. I did not turn at the same time, — turned gradually, — you can’t turn very short. I don’t remember whether I turned at the same time I put the brake on. I don’t know how far I had gone before the machine began to skid. I do not know whether that was after I applied the brake. I don’t know how far it did skid
Another of plaintiff’s witnesses testifies that the billboards would not interfere with the view of a person coming from the east after he got within 42 feet of the track,— after he got past the west corner of the billboard; that the shanty is about 93 feet south of the south line of Grand Avenue, and about 136 feet south Of the center of Grand Avenue; that, according to his calculations, a person within 42 feet of the track would have a view of the track greater than 136 feet from the center of Grand Avenue, unobstructed by anything. Other witnesses testified for plaintiff as to the conditions, the distances, the distance east of the track, and location of the motorcycle at the time the engine came onto the crossing, the distance it could be seen, etc. Some of this evidence is not as favorable to the plaintiff as the evidence we have set out. We are giving to plain
Errors are assigned in regard to rulings of the trial court, on objections to- evidence, and in excluding offered evidence by plaintiff. These relate more to the question of defendant’s negligence; and, had the rulings been otherwise,