16 N.W.2d 829 | Iowa | 1944
Lead Opinion
One question only is presented on this appeal: Was there sufficient evidence of plaintiff's freedom from contributory negligence to warrant submission of that issue to the jury? Plaintiff had the burden of proof, but on the motion to direct verdict he was entitled to have the evidence bearing on that issue viewed in the light most favorable to himself. It becomes necessary to set out the substance of the record with that in mind.
Defendants are trustees of the property of the Chicago, Milwaukee, St. Paul Pacific Railroad Company. One of its *230 lines runs east and west through the village of Sexton, in Kossuth county. The collision in question occurred about noon on June 8, 1942, at a street or highway crossing in said village. Plaintiff, then twenty years old, was driving his automobile north toward the crossing on a graveled road or street. His car was equipped with four-wheel brakes and newly purchased tires, all in good condition.
Defendants' freight train approached the crossing from the east. It was a clear day. The windows of plaintiff's car were down. He was a stranger to the vicinity but had driven south over the same crossing about an hour earlier the same day.
He testified he knew he was approaching the railroad track and that "they run a lot of passenger and freight trains on the track, some of which run pretty fast and some not so fast." He says he was listening for a train as he proceeded into the railroad right of way. He heard no whistle and no bell. Two witnesses, Mrs. Joseph Krieps and Wallace Anderson, who were at a point in the highway in front of the Krieps house 275 to 300 feet south of the crossing testified quite positively that no signals were sounded. Other witnesses were equally positive that the statutory signals were given.
Plaintiff and the two witnesses referred to fix the speed of his car as he passed these witnesses and approached the crossing at fifteen to twenty miles per hour. Before reaching the Krieps house he had been going thirty-five to forty. The view to the west (on his left) was open and unobstructed; to the east there were obstructions:
"I knew that was the dangerous side, so I never paid much attention to the left-hand side."
Two tracks of the railroad cross the highway at this point. The northerly one was the main track, the southerly one a passing track. The south rail of the main track and the north rail of the south or passing track were 11 1/2 feet apart. The distance between rails on each track is 4 feet 8 inches.
The collision occurred on the main track, which, according to plaintiff's own testimony, is 45 feet from the south edge of the right of way. On the east side of the road, just south of the crossing, is the Weaver place, bounded on the north by the right *231 of way, with wire fence between. One witness says the level of the ground of the Weaver lot is 4 to 5 feet higher than the level of the highway. Another says it is some higher.
Trees and bushes and the house on the Weaver lot obstruct the view to the east of one on the highway approaching the crossing from the south until he reaches the edge of the railroad right of way. A large cottonwood tree near the north edge of that lot overhangs the right of way "four or five or six feet." The witnesses also enumerate weeds in the right of way as obstructions but it clearly appears they were not high enough to interfere with the view of an approaching train. Right at the corner of the Weaver lot is a telephone pole and there are high-line poles running east along the railroad right of way. Both highway and railroad are level at the crossing and in each direction so far as material to this inquiry.
Plaintiff's own testimony (corroborated by the testimony of witnesses on his behalf) is to the effect that at a point 45 feet south of the railroad track (at the edge of the right of way) he could see 75 to 100 feet down the track to the east, that the cottonwood tree and the poles and bushes prevented his seeing farther in that direction. That was the last point at which he looked except just as the train was upon him:
"Q. At thirty-five feet how far could you see down the track? A. I don't know. I was not looking — I was not looking at thirty-five feet down the track, or forty feet either. Q. The only point you want to tell this jury you looked was at the corner of the Weaver fence and the right-of-way where your view to the east was obstructed so you could only see seventy-five to one hundred feet down the track? Is that correct? A. Yes, around in there. I could not give exact measurements because I don't know about that. Q. That is the only place you looked to the east? A. Yes. Q. To discover an approaching train? A. The second time I looked the train was coming down the track. Q. That was too late then? A. I didn't get stopped then. Q. After you passed the point of forty-five feet, or the right-of-way fence and the Weaver lot, as a matter of fact the view substantially increased so you could see any distance down the railroad tracks to the east? A. Oh, I think you have to get *232 right up to the tracks before you can get a clear view down to the east. I was down there since the accident and I purposely looked for that."
Mrs. Krieps estimates (without having measured) that up to a point 25 feet south of the main-line track the view to the east was completely obstructed. Anderson says "you would have to be about twenty-five or thirty feet from the main track" before you would have an unobstructed view down the railroad.
Plaintiff, as we have said, testifies that he approached the south edge of the right of way at fifteen or twenty miles per hour. It is difficult at this point to summarize his testimony. After testifying that he looked at the point 45 feet south of the main track his testimony is as follows:
"Q. And you didn't look again? A. I didn't say I didn't look again. I looked again and I seen the train coming. Q. Where were you then? A. I was right onto the switching track or side track. * * * Q. You were south of the side track? A. Yes. Q. And how far were you then from the main track? A. Oh, twenty or thirty feet — twenty-five feet or thirty feet. Q. And at the time you looked at the point forty-five feet south of the main track — and you are sure that is forty-five feet? You have measured it since? A. Yes, we measured it. Q. How fast was your automobile being driven? A. I don't remember of slowing — I remember when I got close to the track — I don't remember slowing down until — Q. How fast were you going? A. About fifteen or twenty miles an hour. Q. At that point you were going fifteen or twenty miles an hour, and didn't see any train or anything, so I assume when you went on the passing track you were going fifteen or twenty miles an hour? A. I could not say for sure, but I think that is the speed I was going."
In describing the collision he says he saw the front end of the engine pass, "what they call the cowcatcher, probably about fifteen feet of the engine, ten to fifteen feet." Witnesses Krieps and Anderson think his car had stopped before the collision, but, in any event, it seems clear that the front of his car and what is referred to in the briefs as the "rock arm or cylinder head" at the side of the engine came in contact with each other. *233
Plaintiff does not think he was on the passing track yet when he applied his brakes:
"Q. Well, in any event, Mr. Scherer, you were going too fast to stop your car, no matter where it was, when you first discovered this train approaching? A. I didn't get it stopped in time. Q. You were going too fast to stop it; you did all you could to stop it? A. That is right. Q. You were just going too fast? A. If I was driving slower, I perhaps would have stopped, if I had seen it in time."
Plaintiff's witnesses who saw the collision both estimate the speed of the train at fifty miles per hour; one says "approximately forty-five to fifty." They say when the train came to a stop seventy cars of the train were west of the crossing. Mrs. Krieps thought there were as many or possibly more still to the east. The conductor testified that at the time of the accident the train consisted of an engine and tender, fifty cars, and a caboose.
As plaintiff approached the crossing from the south he passed witnesses Krieps and Anderson on his left. Anderson was sitting in a parked automobile on the west side of the road and Mrs. Krieps was standing by it talking to him. North of the Krieps home some trucks were standing and beyond them a Model-A Ford was coming out of a lane on the west side of the highway and south of the railroad right of way. The Ford slowed up and allowed him to pass and he paid no further attention to it.
According to plaintiff's testimony, after looking to the right as he came upon the right of way and seeing no train coming from the east, he glanced to the left, then straight ahead, and saw a man on the other side of the track, 200 or 300 feet ahead, "waving at him and motioning with his arms: Q. Did you look at him for any appreciable length of time? A. I just looked, and then I looked quick to the right."
It was then he saw the approaching train "about fifty feet down the track" and his car was then "maybe twenty feet from the track, twenty or twenty-five from the main track * * * almost up to the passing track." He was still going fifteen to twenty miles per hour. *234
I. This, in substance, is the record which appellant contends should have been submitted to the jury. Does it make a prima facie case on the issue of freedom from contributory negligence?
The trial court sustained appellees' motion to direct on two of the grounds urged: "2. That the evidence establishes that the plaintiff was guilty of contributory negligence * * *" and "3. That upon the entire record, in the event this case is submitted to the jury and the jury returns a verdict in favor of the plaintiff, it would be the duty of the Court to set the verdict aside upon the insufficiency of the evidence."
It is not necessary to pass on the merits of the first of these grounds, for the burden was not upon appellees to establish that appellant was guilty of contributory negligence. We are concerned only with the sufficiency of the evidence of appellant's freedom from contributory negligence.
There is a fundamental difference between these two methods of approach to this question. We have not always been careful to maintain this distinction but it is important to be kept in mind.
II. The difficulty in cases of this kind is not so much in stating the principles involved as in applying them to the facts testified to by the witnesses. We have examined all the cited cases but are not disposed to discuss or distinguish the many relied on by appellant, nor to cite all those which, in varying degrees, are pertinent as supporting our conclusions. Being convinced from a careful consideration of the record that the trial court acted properly in directing verdict for appellees, we shall state as briefly as may be our reasons.
The language of the opinion in Artz v. Chicago, R.I. P.R. Co.,
In Glessner v. Waterloo, C.F. N.R. Co.,
"The action of the trial court in sustaining the motion was undoubtedly correct. The law does not undertake to direct whether a traveler upon the highway shall first look to the right or to the left before crossing tracks, or to fix the place where observation shall be made. It does require that the traveler shall look at a place where he can see, and that he shall then bein a situation to avoid injury by the operation of cars upon thetracks." (Italics supplied.)
Appellant's whole argument here is based upon the proposition that, "As the plaintiff drove the last several hundred feet before reaching the right-of-way, he could not see the track as it extended east from the crossing by reason of the various obstructions." In appellant's brief and argument it is said:
"Although some of defendant's witnesses testified that there was an occasional place where you could get a flash view through the trees, all of defendant's witnesses and the plaintiff's witnesses agreed that there was a constant obstruction for a person driving along in an automobile and that it was impossible to see to the right, from a point several hundred feet south up to the right-of-way."
The testimony of plaintiff is clear that he understood this situation, although he had never been over the crossing until he crossed it earlier that day. We are compelled to conclude from his own testimony and the testimony of his witnesses that he approached the crossing knowing his view to the east was obstructed. When he came about to the edge of the right of way, 45 feet from the crossing, he says he could see only 75 to 100 feet down the track to the east. He must have known that as he went farther north the view to the east would lengthen. He must also have known that if a train was coming from the east from a point farther than 75 to 100 feet it might be coming at a rate of speed such as to make it impossible for him to cross ahead of it. His own testimony is that when he came to a point approximately at the edge of the right of way and 45 feet from the main track he was traveling fifteen to twenty *236 miles per hour. He continued at that speed until he was only 25 or 30 feet from the track and saw the train about 50 feet away. He says, in effect, that he does not remember of slowing down until then. There is no evidence of any diverting circumstances or deceptive appearances excusing him from the duty of looking at a place where he could see and from having his car under controlso as to be able to stop if he then discovered the approach of atrain. There was placed upon him an affirmative duty to exercise care under the known circumstances and there was an affirmative burden placed upon him in this case to produce evidence that he exercised such care.
Appellant does not claim that the motions of the man on the other side of the track diverted his attention. That such claim could not be made see Ballard v. Chicago, R.I. P.R. Co.,
In Darden v. Chicago N.W.R. Co.,
"The duty is placed on the driver of an automobile to look and listen for trains, and it was one of plaintiff's duties to look, at the place where, by looking, she could have seen * * *." Citing Hinken v. Iowa Cent. R. Co.,
In the Hinken case, supra, we said [
We affirmed the lower court in directing verdict in this case.
In Reeves v. Dubuque S.C.R. Co.,
Numerous later cases support the rule that in absence of diverting circumstances or deceptive appearances, a motorist approaching a crossing, who knows his view is obstructed until he is close to the track, must, in the exercise of due care, not only look when he reaches the point where looking is possible but must then have his own vehicle under such reasonable control as to enable him to stop if necessary to avoid collision. See Hitchcock v. Iowa Southern Utilities Co.,
In Bannister v. Illinois Cent. R. Co.,
"It is shown that, when he first looked to the east, his view was obstructed, and he knew it; and that he did not again look to the east until he reached a point where a collision could not be avoided."
The citations and quotations could be extended much further but the foregoing sets out the law we believe applicable to this case. We are compelled to the conclusion that the trial court properly directed a verdict for defendant. The case is affirmed. — Affirmed.
MANTZ, C.J., and HALE, MILLER, and WENNERSTRUM, JJ., concur.
BLISS, GARFIELD, MULRONEY, and OLIVER, JJ., dissent.
Dissenting Opinion
I dissent from the majority opinion because, in my judgment, it clearly trespasses upon the province *238
of the jury, violates sound and long-recognized principles of law and procedure, and passes without mention our latest reaffirmance of a number of these principles in Coonley v. Lowden,
I recognize, of course, that the issue of freedom from contributory negligence is not always for the jury. But I insist that this court and all courts have uniformly held that the issue is ordinarily for the jury, and that it is the very exceptional case when it is a question of law for the court. I am fearful that with the majority opinion as a guide the exception will become the rule in railroad-crossing cases, and, logically, in highway-intersection collision cases.
Under our statutes and rules of procedure, in law actions questions and issues of fact are to be submitted to a jury for determination, under instructions as to the law received from the court. The reasons therefor are well expressed by the learned and experienced Judge Cooley, in People v. Garbutt,
"The jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that the jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be."
In Ernst v. Hudson River R. Co.,
"If it be true, as is sometimes intimated, even from the bench, that false verdicts are occasionally rendered on questions like this, the remedy is to set them aside, and not to usurp the prerogative of the jury. Even among the cases which have been held so plain as to justify a nonsuit, there have been few in which the judges have not themselves disagreed; and the inquiry *239 naturally occurs to the mind, whether we are less liable than jurors to err, on questions of pure fact, pertaining to the ordinary affairs of life. Our law is framed upon the theory that, on such questions, the citizen can rely with more security on the concurrent judgment of twelve jurors than on the majority vote of a divided bench. Unanimity is not required in our decisions on questions of law. It is otherwise with jurors charged with the duty of determining issues of fact; and such issues should not be withheld from the usual arbiters, unless the evidence leads so clearly to one result that there is no room for honest difference between intelligent and upright men."
The consequences resulting from a nonsuit or a direction of a verdict are so vastly different, with respect to the two parties, that both the trial and the appellate court should resolve every reasonable doubt in favor of the nonmoving party. A sustaining of the motion puts the other party out of court, while its denial allows the moving party to submit his case to the jury, which may grant him all he asks.
This court, by its decisions, has recognized this fact. As said in Hawkins v. Interurban R. Co.,
Quoting from Hendrickson v. Great Northern R. Co.,
"`* * * the measure of ordinary care is so variable that the question of negligence becomes usually and peculiarly a function for the jury, and the courts can but rarely declare a particular act to be conclusive evidence of negligence.'" (Italics supplied.)
As said in Barnes v. Barnett,
I am not trying to revitalize the "scintilla of evidence rule." It has no application in this case. There is ample evidence to require the submission of the question of the appellant's freedom from contributory negligence to the jury.
We have said repeatedly:
"It is the well settled rule of law in this state that if there is any evidence tending to establish plaintiff's freedom from contributory negligence, that question is one for the jury." (Italics supplied.) Huffman v. King,
To the same effect, see Montanick v. McMillin,
"Proximate cause and contributory negligence are questions for the jury, save in very exceptional cases where the facts are soclear and undisputed, and the relation of cause and effect so apparent to every candid mind, that but one conclusion may be fairly drawn therefrom." (Italics supplied.)
In Toney v. Interstate Power Co.,
"As we have often said, the question of contributory negligence is peculiarly one of fact and not of law, save only in thoseexceptional cases where the plaintiff's want of reasonable careis so manifest and flagrant as to at once convince all fair andcandid minds that he did not exercise the caution for his own safety which marks the conduct of ordinarily prudent men. He isnot held to an ideally high standard of care as being free fromall grounds of criticism. It is enough if the evidence be *241 such that the jury may properly say that he acted as carefully as ordinary men of ordinary judgment and experience usually do under like circumstances." (Italics supplied.)
For like language, see Beman v. Iowa Electric Co.,
"* * * it is only in plain cases that the court is justified in holding, as a matter of law, that one injured at a railroad crossing is guilty of negligence." (Italics supplied.) Swegle v. Chicago, B. Q.R. Co.,
It has been repeated so often as to be an axiom, that if fair-minded and reasonable men would differ on the question of fact as to whether or not the injured person was guilty of contributory negligence, then the case should be submitted to the jury on that issue. Ordinary care, and not super, perfect, extraordinary, or the highest care, is all that the law demands. As expressed in McKern v. Wabash R. Co.,
"Perfect care or judgment is not given to mankind, and if a person exposed to danger conducts himself with the caution which may reasonably be expected of a person of ordinary prudence and ordinary presence of mind, he is not to be charged with fault,even though, as a matter of cool afterthought or matureconsideration, he might better have done otherwise."
Speaking through Justice Preston, in Upton v. Hines,
"It is important that the triers of questions of fact as to the alleged negligence of the defendant and the contributory negligence of the plaintiff should put themselves, as nearly as may be, in the position in which the parties were situated at the time of the accident. It is a matter of some difficulty to do this, in every case. It is not so difficult, after an accident,to go to the place, and, by the use of instruments, or by takingphotographs from a definite, fixed, and exact standing position,to say that, under such circumstances, the person approaching acrossing could or should have seen certain things." (Italics supplied.) *242
Other decisions supporting the above propositions are: Hines v. Chicago, M. St. P.R. Co.,
"In order that we may say that a plaintiff is guilty of negligence as a matter of law his negligence must be so palpable that reasonable minds could not differ in the conclusion that he was negligent." (Italics supplied.)
See, also, Johnson v. Omaha C.B. St. R. Co.,
In Pierce v. Dencker,
"We have so many times held that contributory negligence is ordinarily a question for the jury and that, if there is anyevidence tending to establish plaintiff's freedom fromcontributory negligence, that question is one for the jury, that authorities need hardly be cited."
Other cases in point on this matter are: Finley v. Lowden,
"This is in line not only with the almost universal holdings in other jurisdictions, but with our own decisions." *243
The majority opinion quotes from Bannister v. Illinois Cent. R. Co.,
"It is shown that, when he first looked to the east, his view was obstructed, and he knew it; and that he did not again look to the east until he reached a point where a collision could not be avoided."
The facts in that case are much different from the facts in this one. The driver was intimately acquainted with the crossing and had frequently driven over it. The accident happened at 4:25 p.m., and he knew that the train which hit him was scheduled to arrive between 4:20 and 4:25 p.m. He testified that he was not "relying on gates, flagman, or gong to warn me of the approach of the train." He looked at a point where he could not see at all. In the case before us the appellant was a stranger in the vicinity of the village of Sexton. And he was not "intimately acquainted with the crossing." He had passed over it only once before, and that was going south about an hour before, with a clear view of the track east and west of the crossing, and with no occasion to observe obstructions to the view of one traveling north. He was looking for the Krieps home, which was about 275 feet south of the crossing on the west side of the road. Mrs. Krieps told him he would find her husband about a mile south and a half mile west. He returned by the same route, traveling north at a speed of thirty-five or forty miles an hour, until he approached the Anderson car parked in the highway in front of the Krieps house, with Mrs. Krieps standing by the car talking to Anderson. He slowed his car to fifteen or twenty miles an hour and pulled over to the right side of the graveled roadway, which was about 22 feet wide, and proceeded north toward the crossing without increasing his speed. He knew nothing about the train schedules. He knew of the railroad crossing and that a train might cross from either the east or the west, and he approached it with that thought in mind. He knew that the operators of railroad trains gave signals by bell and whistle at highway crossings. He had his car windows down and he listened for signals. The view to the west was the more open one. But to the east *244 for several hundred feet south of the crossing the view was almost completely obstructed except for a possible "flash" or "glimpse," as some witnesses put it. The Weaver place, with its buildings, grove and shrubbery, was just south of the right of way, with the house about 20 feet from the roadway and 60 feet south of the south rail of the main track. South of the Weaver place there were two other sets of buildings with groves in immediate succession. He was not familiar with the exact character or density of the obstructions to his view eastward and he scanned them as he went along. He testified: "I was watching the place where I was facing — I was looking to the right allalong." The following is from the cross-examination of appellant:
"Q. Now, as you drove along there you were thinking then about trains, and seeing the tracks and seeing the warning sign, and your view was obstructed to the east there so you could not see to the east to see whether the train was coming? A. That is right. Q. And as you drove along there, you knew that? A. Yes, I knew that. I was looking. I knew that was the dangerous side, so I never paid much attention to the left-hand side. Q. You were paying attention to the condition to the east? A. Yes."
Ignoring the answers of the witness, appellees' attorney then asked:
"Q. When you got to the point of approximately forty-five feet south of the main line track, that is the only point that youlooked to the east? A. That is the only point where I could getany view of the track at all."
At that point, although the view was obstructed, he looked and said he could see eastward along the track for about 75 or 100 feet, but there was no train at that distance. He saw no train and he heard no signal. Then he thought it a matter of prudence to look to the west. He glanced in that direction and saw no train, and as he turned again to look to the east he saw a man north of the crossing waving his arms. Asked if he looked at him for any appreciable time, he replied: "I just looked, and then I looked quick to the right." He saw the train *245 coming about 50 feet away. His car was about 20 or 25 feet from the main track, almost up to the passing track, the south rail of which was about 16 feet from the south rail of the main track or about 12 feet from the overhang of the train. He slammed on his brakes and in his judgment he brought the car to a stop. The cowcatcher of the engine passed by the car without touching it but the protruding cylinder head caught the front of the car and swung it sideways against the engine, and it was carried or rolled to the west of the highway.
The majority opinion assumes, I think I may fairly say, that the jury could have found the facts as I have stated them, but it holds that they conclusively establish that appellant was not free from contributory negligence. The basis of the holding is that the appellant was negligent as a matter of law in looking to the west, and in not continuing to look to the east, or in not first looking again to the east. That, in my judgment, is not the law, and this court has repeatedly held to the contrary. In Hines v. Chicago, M. St. P.R. Co., supra,
"We have frequently said that a plaintiff in personal injury actions is not guilty of negligence as a matter of law because he did not look or listen at any particular point to discover an approaching train before entering a zone of danger. It is his duty to be vigilant and to exercise that degree of care and caution which the reasonably prudent person would exercise under the circumstances and this question ordinarily is one for the jury. Having looked and listened within a reasonable distance of a dangerous crossing, whether he should have looked or listened again at some other point or place is ordinarily for the jury to decide, and it is not for the court to say as a matter of law in the instant case that the failure to look twice or any number of times in any direction makes him guilty of contributory negligence."
In Glanville v. Chicago, R.I. P.R. Co.,
"It is by these tests that her negligence must be measured but there is no fixed or inflexible rule. The law does not fix *246 any point at which the traveler must look and listen or be chargeable with contributory negligence." (Citing cases.)
In McKern v. Wabash R. Co., supra,
"The point with which appellant [defendant] closes and emphasizes its argument for a reversal is that: `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."
The judgment was not reversed.
We have held in analogous cases that the traveler need not be constantly on the lookout. Read v. Reppert,
In Case v. Chicago G.W.R. Co.,
"One about to cross a railway track is not bound, as a matter of law, to look or listen for a train at any given point. Whether or not he looked and listened at a point where he might have seen the train and avoided the injury in the use of ordinary care and prudence is generally a question for the jury."
The language is repeated and approved in Davitt v. Chicago G.W.R. Co.,
In Winey v. Chicago, M. St. P.R. Co.,
"The words we have italicized make it the duty of a person to look and listen for approaching trains at all points in his *247 passage, and hold him guilty of contributory negligence if he fails. This rule is too broad — First, because it usurps theprovince of the jury; and, next, because it requires the travelerto keep his eyes constantly on the track for trains at all pointsleading to its passage, whether the view of the train isobstructed or not." (Italics supplied.)
In Butterfield v. Chicago, R.I. P.R. Co.,
"The extent of his duty is to exercise the care of a person of average or reasonable prudence; and, it being shown that he didlook and listen within a reasonable distance of the crossing, thequestion whether he ought to have looked or listened again, atsome other point or place, is for the jury, and not for thecourt." (Citing many Iowa decisions. Italics supplied.)
The same principle of law is unequivocally stated in the following cases: Barrett v. Chicago, M. St. P.R. Co.,
On this point, the court, in affirming a judgment for plaintiff, in Butterfield v. Chicago, R.I. P.R. Co., supra,
"The defendant's main reliance below and in this court is upon the proposition that deceased is chargeable with contributory negligence, as a matter of law. In support of this theory, engineers, photographers, and other witnesses were examined, showing the location and surroundings of the crossing, from which it is argued that, if deceased or Murphy had looked west after turning into Seventh Street, they could have seen the approaching train; and upon that assumption, it is insisted that, in failing to discover the danger, they were, of necessity, and as a matter of law, negligent. This contention, that if, by use ofengineering instruments or by laying a `straight edge' upon a mapor blue print made at leisure after the tragedy is over, it ismade to appear that, if the traveler on the highway had lookedfrom some designated station or standpoint, and if the train hadthen been in the direct line of vision, he could have discoveredit and avoided a collision, the court must say, as a matter oflaw, that his failure to do so is contributory negligence, is onewhich has been, with great persistence and *249 tireless repetition, urged upon the court during the half centuryand more of the era of railway development in Iowa; and, withhere and there a slight sporadic departure from the settled rule,we have steadily held that, if the traveler is shown to havelooked and listened when within reasonable distance of thecrossing, the court will not attempt to say, as a matter of law,that he is guilty of contributory negligence because he did notlook or listen again at some other designated point, from whichhe might possibly or even probably have discovered the train. Heis not charged with the duty of discovering at his peril everydanger which perfect care and caution may reveal to him. The extent of his duty is to exercise the care of a person of average or reasonable prudence; and, it being shown that he did look andlisten within a reasonable distance of the crossing, the questionwhether he ought to have looked or listened again, at some otherpoint or place, is for the jury, and not for the court. [Citing numerous decisions.] The foregoing is by no means an exhaustivelist of the precedents in point, but they are sufficient tosuggest the gravity of the situation which would be created inour case law if the appellant's revolutionary contention in thiscase were to be adopted." (Italics supplied.)
A judgment for plaintiff was affirmed. The opinion, by Justice Weaver, was concurred in by Justices Evans, Preston, and DeGraff.
Under the record in this case, for the purpose of appeal, it must be accepted as a fact that the jury could have found, under testimony warranting the finding, that the statutory crossing signals were not given by the appellees. The trial court did not pass upon this ground of the motion to direct. Common sense, common experience, and many decisions of this court note that the failure to give such signals is a most important factor to consider in passing upon the issue of contributory negligence. But the majority opinion ignores it by not even mentioning it.
The appellant had a right to assume that they would be given, and to conduct himself accordingly. He was not required to anticipate such negligence on the part of the appellees. The statute requires the giving of such signals so as to give a direct *250
warning to the traveler. The failure to give them is particularly negligent at dangerous crossings where the train's approach cannot be seen until 45 feet from the crossing. Whether they are given or not has a most important bearing upon the issue of plaintiff's contributory negligence. In Haven v. Chicago, M.
St. P.R. Co., supra,
"The jury could find freedom from negligence, because there wassuch right to rely."
In McKern v. Wabash R. Co., supra,
There is nothing in this case which takes it out of the ordinary. The following cases fully support the appellant's contention that the failure to give the signals, which fact the jury could have found, was of such direct and important bearing upon the issue of his negligence that it should have been submitted to the jury. Coonley v. Lowden, supra,
In Davitt v. Chicago G.W.R. Co., supra,
"We think it may be fairly concluded from all the evidence that had the driver of the team been constantly on the lookout, the approaching train would have been discovered * * *. But this isnot the sole test. He had the right to expect a compliance withthe custom of giving signals at that crossing, and if he listenedand heard nothing there was presented a question for the jury todetermine whether he was at the time exercising due care." (Citing cases. Italics supplied.)
This matter was passed upon in Coonley v. Lowden, supra,
"We have repeatedly held that it is difficult to divorce the reciprocal duties of railroad and traveler and it is proper to consider, on the issue of contributory negligence, the right of the traveler to rely upon the railroad's compliance with the law. This is especially true of requirements designed to warn the traveler of the train's approach. True, the failure to signal does not relieve the traveler from exercising ordinary care on his part. But the absence of a warning signal may have the effect of lulling the mind into a sense of security. The testimony that no signal was given is therefore properly to be considered on the question of contributory negligence. See authorities in preceding paragraph; also, [citing authorities]." *252
The facts are important factors in this appeal and I wish to give some additional consideration to them, keeping in mind that the rule that in passing upon defendant's motion to direct a verdict the evidence must be viewed in the light most favorable to plaintiff should be given more than mere lip service.
"Every inference reasonably permissible in support of the issue should be carried to the aid of the evidence." Bauer v. Reavell,
"In determining this case, plaintiff's evidence must be viewed in its most favorable light, and the evidence most favorable to the plaintiff must be accepted. It is not for this court to weigh the evidence if it is in conflict." Deiling v. Des Moines R. Co.,
As stated in Ney v. Eastern Iowa Tel. Co.,
"* * * we must not overlook the rule, which has been established by a long line of decisions in this court, that, before the court is warranted in directing a verdict upon any issue tendered, every fact favorable to the party against whom the verdict is asked, and which the evidence tended to prove, must be conceded as established."
[EDITORS' NOTE: PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.] *253
I have inserted herein appellees' Exhibit No. 4, a photograph showing the obstructions to appellant's eastward view just as he approached the crossing from the south.
The camera was placed 200 feet south of the track, in the center of the highway, so that the trees and buildings obstructing the view farther south are not shown. It was a four-rod highway with the center 22 feet graveled. As you look at the picture you are looking north. The cross-buck railroad sign to the right as you look at the picture was about 10 feet east of the graveled roadway and 31 feet south of the main-line track. The cross buck on the opposite side of the highway is north of the railroad tracks. The house and buildings in the right background are not the Weaver buildings, but are north of the tracks. The two poles with crossarms are in the high-tension electric line which runs north and south on the east side of the highway. The pole in the foreground, with the anchor pole attached, is about 10 feet from the gravel and about 17 feet due south of the cross-buck railroad sign, and about 8 feet west of the corner post of the right-of-way fence and the north-and-south fence of the Weaver yard. Appellees' plat, Exhibit No. 3, incorrectly locates this pole right up against the corner post. That plat does not locate many of the obstructions to appellant's east view. This high-line pole is about 48 feet south of the south rail of the main track. The anchor pole is attached to the high-line pole about 7 or 8 feet from the ground. Their bases were about 4 or 5 feet apart and 4 or 5 feet up they were about a foot apart.
Twenty feet east of the corner post and up against the right-of-way fence on the inside is a large cottonwood tree with a trunk 3 feet in diameter. Many of its branches are over the right of way. Lower limbs 2 or 3 feet above the fence extend at least 6 feet over the fence into the right of way. Another small tree between the cottonwood and the corner has branches 6 feet from the ground. A lilac bush is just east of the cottonwood tree. Weeds at least 2 feet high are in the right of way and the east 22 feet of the highway. The ground of the Weaver lot is 4 or 5 feet higher than the highway. The tops of the weeds would thus be 6 feet above the ground level of the graveled roadway, and appellant's head, on the left side *254
of the car, would not be over 5 feet above the road level, necessarily limiting his vision of even the top of a train approaching in the distance. His first obstruction and the one nearest him was the high-line pole and anchor pole. Sixty feet east of the highway and 34 feet south of the south rail of the main line was a telegraph pole, and anchor pole 10 feet north of it. He looked east as soon as he could see at all at the corner. He estimated he could see 75 or 100 feet to the east and saw no train. His speed was fifteen miles an hour — 22 feet a second. He looked to the west, as prudence and our decisions require. Moore v. Chicago, St. P. K.C.R. Co., supra,
"He had no reason to expect an engine or train to pass from one direction more than from the other; hence it was his duty to lookin both directions. He had a right to presume that no engine would be run at a greater speed than that prescribed in the ordinance, and that the bell would be rung at crossings as required. We have seen that, if plaintiff had looked west when about forty feet south of the crossing, he must surely have seen the approach of this engine, in time to have stopped and avoided the accident. The contention is that he was negligent in not again looking west after he passed the point sixty feet south of the track. We do not think it should be said, as a matter of law, that plaintiff was guilty of negligence in not again looking westward after he passed the point sixty feet south. He had looked westward at Shaw street, and from the sixty-foot point, and saw nothing approaching; was listening and heard nothing. Itwas his duty to look east as well as west, and he did so. While we do not say that the plaintiff was not negligent, we do not think that it should be said, as a *255 matter of law, that he was. Whether, in view of all the circumstances under which he acted, he was negligent, is a question about which we think men may honestly differ, and therefore one that should have been submitted to the jury." (Italics supplied.)
In Nederhiser v. Chicago, R.I. P.R. Co., supra,
"In the selection of the time and place for making observations before going upon a railroad crossing, ordinary care must be exercised, but it is ordinary care under all of the attendantcircumstances. The place selected must be such that theobservation will be reasonably effective. A traveler on a highway, realizing that he is about to cross a railroad track, must look when by looking he can see, and listen when by listening he can hear. McFarland v. Illinois Cent. R. Co.,
"A traveler approaching a crossing is bound to look both ways,or up and down the tracks. This does not compel him to look inany particular direction first, and the frequency with which heshould change the direction of his observation depends upon thecircumstances, and usually presents a jury question. If a greater danger is reasonably to be expected from one direction than from another, the traveler would be justified in paying more attention to that direction. * * * Furthermore, it is not for a court to say that some other course might have *256
been better and safer; and this is especially true when atraveler is placed in a position of imminent peril by reason ofthe railroad company's negligence, as in failing to give propersignals. That plaintiff would not have been struck by a train, had she acted differently than she did, does not conclusively show contributory negligence on her part. Wiese v. Chicago G.W.R. Co.,
A judgment for plaintiff was affirmed.
In High v. Waterloo, C.F. N.R. Co., supra,
"The true test for every case is whether or not, under all the existing circumstances, the person approaching a railway crossing, and about to cross, has exercised the degree of care and caution which a person of ordinary care and prudence would have exercised under the circumstances. Ordinarily, that question is peculiarly one for a jury. * * * We are not disposed to adopta hard and fast rule, and declare that a duty rests upon allpersons approaching a railway track, even one where the view ispartially obstructed, to invariably stop before attempting toeffectuate a crossing. * * * No one disputes the fact that, as the appellee [plaintiff] approached the railroad track from this point [21 feet 8 inches distant], he could see a greater distance south along the railroad track. * * * We do not think that the photographs offered in evidence demonstrate conclusively and certainly that the appellee must [italics by the writer of the opinion] have seen the approaching car when he looked to the south at the point where he testified that his observation was made. Having looked to the south at a point 21 feet and 8 inches from the rail, and having neither seen nor heard any approaching engine, the appellee then looked to the north, as it was his dutyto do. He testified that thereafter he looked again to the south, and observed the approaching engine about 75 feet distant; and that at that time he was already upon the track. Must we say that, as a matter of law, the appellee was guilty of contributory negligence in failing to look to the south a second time sooner than he did, after having made his first observation in that direction? It was as much the appellee's duty to look to thenorth as it was to look to the south. He was required to look andlisten for an approaching train from each direction. * * * Wethink it was a question for the jury to determine, under thesecircumstances, whether the appellee acted as a man of ordinarycare and prudence in making *258 this approach. If he looked to the south 21 feet and 8 inchesfrom the track, and then looked to the north, it was a questionfor the jury to say whether he was negligent in not again lookingto the south sooner than he did.
"In this connection, the fact must also not be overlooked thatappellee contends that no warning signals were given by theapproaching engine. The appellee had a right to expect the appellant to obey the law in respect to such signals; and while the failure to give the same (if appellant did so fail) did not absolve the appellee from the duty of using reasonable care, it is a circumstance proper to be considered by the jury in determining whether appellee was guilty of negligence." (Italics supplied.)
Judgment for plaintiff was affirmed, Justices Evans, Stevens, and Arthur concurring.
In Barrett v. Chicago, M. St. P.R. Co., supra,
"Whether, notwithstanding that the track might have been clear to a distance of over 100 feet to the west, they were required to look again for an approaching train, was an issue for the jury to determine. * * * The law does not specify precisely what a person about to pass over a railroad crossing must do. The only test to be applied is that, in so doing, he must exercise ordinary care."
The opinion quoted with approval from Winey v. Chicago, M.
St. P.R. Co., supra,
"The rule no doubt is that if the traveler, having looked and listened without seeing or hearing an approaching train within areasonable distance of the crossing, is, by reason of a neglectof the railroad company to blow the `statutory' whistle, *259 run upon and injured, liability attaches therefor; and if the view of the track is obstructed by any means, so as to render it impossible or difficult to learn of the approach of a train, or there are complicating circumstances calculated to deceive or throw a person off his guard, then whether it is negligent on the part of the traveler who fails to look and listen is a question of fact for the jury to determine from the circumstances of each particular case. [Citing cases.] * * * but under any possible view of the testimony it was error to require plaintiff to look constantly for trains `at all points in his passage.'" (Italics supplied.)
The opinion cited with approval like holdings from Platter v. Minneapolis St. L.R. Co., supra,
"* * * on approaching the track from the one hundred and fourteen-foot point, the view to the north became wider, and when thirty-five to forty feet from the track one could see one hundred to one hundred and fifty feet into the cut."
The plain inference being that when the plaintiff looked at the 100-foot point, the observable distance north along the track was less than 100 feet; and yet the court, in an opinion by Justice Withrow, concurred in by Justices Ladd, Deemer, and Gaynor, held that the issue of contributory negligence was for the jury and affirmed a judgment for the plaintiff.
Going back now to the facts in the case before the court, the appellant testified that as he looked again to the east after glancing to the west and seeing the man waving his arms he saw the train about 50 feet away. His car was then about on *260 the passing track which was 4 feet 8 1/2 inches wide. The distance between the passing track and the main-line track was about 11 1/2 feet. When he first looked east at the corner, 45 feet from the south rail of the main line, he was two seconds away from that rail, if he was traveling fifteen miles an hour. When he saw the train he was about one second away, at the speed he was traveling, and less than that when you consider the 4-foot overhang of the train.
As Justice Mitchell said, in Eby v. Sanford,
"We are dealing in fractions of seconds * * * The question is for the jury to decide * * *."
He slammed on his four-wheel brakes. They had been tested the Friday before. There was, of course, the "thinking distance " — the distance covered by your car from the moment your brain flashes "stop" until your muscles and nerves coordinate and you put your foot on the brake. He felt the brakes take hold and he thought he was going to stop in time. The pilot passed him but the cylinder head — the overhang of the engine beyond the south rail — caught the front of his car and threw the side of it into the eccentric rod of the engine. Where is the "manifest and flagrant want of care" of the "exceptional case" which the law requires to stamp his negligence as conclusive against him? Wherein was this negligence "so palpable" as to convince all reasonable minds? How can this be fairly called the "peculiar," the "rare," the "plain" case which deprives one of a jury trial, of an opportunity to have his lawyer argue to a jury the strength and the weakness of opposing contentions, and to point out the many discrepancies and contradictions in the testimony of the defendant? There are plenty of such in the testimony of the appellees. Lawyers and judges will agree that there is no more effective way to separate the false and the true. I am reminded of the words of the blind, immortal Milton found on page 96 of 2 Milton's Prose Works (1871 Edition):
"Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her *261 and falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?"
In what particular or in general did this young man's conduct greatly differ from that of the thousands of motorists who travel over roads unfamiliar to them? He was not looking at a place where he could not see at all, as in the Dean case [Dean v. Chicago, B. Q.R. Co.],
He was not, as a matter of law, required to stop, nor to look at all times to the east. He was not, as a matter of law,
required to so drive his car and so conduct himself as to avoid any collision. He was not the absolute insurer of his own safety. He had a right to expect the signals required by statute and common prudence, and to govern himself accordingly. The appellees owed him that duty, and, having lulled him into less vigilance, ought not escape its liability. His conduct was vastly different from that of the motorist in Hitchcock v. Iowa Southern Utilities Co.,
The facts in this case are much different from those in Nurnberg v. Joyce,
One of my colleagues, in his letter of concurrence, quoted from and cited other decisions which convinced him of the rightness of the majority opinion. I would like to analyze each of them but that cannot well be done. I am not in serious disagreement with the result or the law declared in any of them, with one or two exceptions which I will refer to later. The question was close in some of them. But, in general, they are not precedents or authorities which sustain or approve of the majority opinion. Fairness demands that I list these cases: Swanger v. Chicago, M. St. P.R. Co.,
Continuing with list: Landis v. Interurban R. Co.,
Glessner v. Waterloo, C.F. N.R. Co.,
My colleague stated: "To make an observation when he could only see 100 feet of the track would, in my judgment, be no observation at all." I am quite sure there is no decision of this court which supports such a statement. It is very, very seldom that a court is justified in saying, as a matter of law, that the exercise of ordinary care imposes upon a person the absolute duty to do some particular thing. This court has repeatedly so held. In passing upon contributory negligence as a matter of law it is the over-all view which should be determinative, and not a single fact insulated from surrounding circumstances. Certainly this court never has, and never should, set in figures the distance one must see down a railroad track before looking up the track. We must take as the guide the sound and time-honored one — Whatdistance was reasonable under the circumstances? The situation must very rarely, if ever, arise when any court should say, as a matter of law, that 50, 75, 100, 150, or 200 feet is "no observation at all." Whether the distance observable was reasonable should be for the jury and not the court. In Nederhiser v. Chicago, R.I. P.R. Co., supra,
In High v. Waterloo, C.F. N.R. Co., supra,
In Davitt v. Chicago G.W.R. Co., supra,
In this case the appellant was especially careful and cautious. He started out that morning with his car in good condition, with new tires, lately tested brakes, running quietly and smoothly. His mind was on his driving and his surroundings. He did more than the law requires. He looked continuously, ahead and to each side, but mostly to the more obstructed side. He was vigilant with all of his senses. He had the car windows down and he listened for the train and the expected signals. He had the car under control and traveling at a very moderate speed. He permitted nothing to distract his attention. He was looking east when he came to the right-of-way line, the first place where a view in that direction was possible. Obstructions obscured the view in the distance, but he could see the track for 100 feet and saw no train. Should he have continued to look east until he had a more extended view? That is the question. The majority say that he was conclusively negligent in not doing so. Looking back, we can now say that it would have been better had he done so. But he was not gifted with prescience. Yet the majority say that he did not use such sense as he was endowed with, and that he acted unreasonably, with palpably manifest and flagrant negligence, as a matter of law, and to the extent that all reasonable and fair-minded men honestly seeking for the truth must so conclude. I cannot agree with such a conclusion. This young man could see for a distance of 100 feet, and no train was in sight. So far as he could see, no train was coming from the east. He could see none and he could hear none. He reasonably presumed, and rightly so, that the whistle on any engine within 60 rods would have been sounded and the bell rung continuously until the crossing was *266 passed. He heard neither. Certainly it ought not be said that he was negligent as a matter of law in looking to the west, as common prudence and our decisions say it was his duty to do. An act cannot be negligence as a matter of law which the law requires. His car was slowly moving forward and without delay he looked again to the east and saw the train about 50 feet away. Prompt application of the brakes stopped the car, as he believed, south of the track. But it was within the overhang of the train.
Two things he could have done and saved himself. He could have continued to look east. His failure to do this was not per se negligence. He could have stopped his car between the right of way and the track. But assuredly it cannot be said that the circumstances demanded this as a matter of law.
Two witnesses for appellant testified to the obstruction of the view eastward until within about 25 or 30 feet of the track. The appellees' civil engineer made the plat, Exhibit No. 3, and its claim agent took the picture exhibits. Photographs, just as witnesses, do not always tell the truth. None of the east views show the high-line pole and brace pole, although they were directly west of the fence corner post. None of them were taken from the place where the appellant said he first looked east — near the corner post on the right-hand side of the gravel east of the center of the highway. Exhibit 6 was taken with the camera in the center of the road. Exhibits 7 and 8 were taken from the west edge of the gravel, where it is conceded a more extensive view would present itself to the eye of the camera. The second telegraph pole showing in Exhibits 7 and 8 is about 160 feet from the center of the highway. The first is about 60 feet. The camera was 3 1/2 feet high. The appellant's eyes were about 5 feet high. We cannot accept these exhibits as true any more than we can accept the testimony of appellees' witnesses as true. Whether the location and position of the camera were such as to faithfully reproduce the surroundings as they appeared to the appellant were questions of fact, and for the jury's determination. See per curiam opinion in Hawkins v. Interurban R. Co., supra,
Some of appellees' nonemployee witnesses corroborate the appellant. Kirchbaum testified that around about 50 feet *267 south of the track — the center, I believe — the poles and the trees merge together "so your view is completely cut off." Mimbach said that at about 50 feet south of the center of the track, where Exhibit No. 8 was taken, at the west edge of the gravel, he made some observations. On cross-examination he testified that if you stepped back a couple of feet and to the right a couple of feet you could not see very far down the track — about 125 feet, according to his best judgment. The jury could find that the appellant first looked from about this location.
There is also support for appellant's testimony that no train was in sight when he looked and saw about 100 feet to the east. Appellees' fireman sat on the left side of the engine. The following is from his cross-examination:
"When he saw the car some two hundred or two hundred fifty feet south, the train was eight hundred feet east of the crossing, maybe a little less, maybe a little more. His best judgment is eight hundred feet. He saw the car when it first came out from behind the obstruction [at the Weaver corner]. It was traveling about fifteen miles an hour. The train then was close to the crossing, `probably fifty — between fifty and seventy feet, maybe.' It might have been a little further. Doesn't think it was one hundred feet. * * * He saw the car come in contact with the locomotive. He didn't see the car diminish its speed."
Even the majority of the court cannot wipe that testimony out. It should have gone to the jury.
The car was 200 feet south of the track when he first saw it and was traveling fifteen miles an hour, and the train was 800 feet east of the crossing, or four times the distance from it that the car was. Since the engine and the car reached the center of the crossing at the same time, the speed of the train was sixty miles an hour. Appellant was about 45 feet from the track when he looked east and saw 100 feet, and the engine was four times 45 feet, or 180 feet down the track and out of sight.
If you take the fireman's other estimate, that the train was 50 feet away and the car was at the Weaver corner, approximately 50 feet distant, the train had traveled 750 feet *268 while the car had traveled 150, and the speed of the train must have been five times fifteen miles, or seventy-five miles an hour, and was five times 45 feet, or 225 feet away when the appellant first looked.
The appellant is entitled to have the court view the testimony, particularly the appellees', in the most favorable aspect.
The engineer said the crossing whistle was four blasts — two long, a short, and a long — and it consumed ten seconds. He blew the signal twice, commencing 1,400 feet east of the crossing, and the train traveled 700 feet during the first signal. And he and the fireman and the head brakeman, with marvelously precise and accurate memories, considering their other duties, testified that the engine was in the middle of the crossing when the second long blast of the second signal was sounding. The Iowa Reports confirm the splendid memories which trainmen have for crossing signals in collision cases, but they have never recorded such a feat as this.
Seventy feet a second would be about forty-seven miles an hour. The rear brakeman was not a witness but the other four trainmen put the train speed at twenty-five or thirty miles an hour as it approached the crossing.
It is ordinarily the province of the jury to pass upon the veracity of witnesses, and the credibility, weight, and probative value of the testimony.
I take exception, as unsound law, to the statement in the majority opinion, to wit:
"There is no evidence of any diverting circumstances or deceptive appearances excusing him from the duty of looking at a place where he could see and from having his car under control soas to be able to stop if he then discovered the approach of atrain."
It is the italicized portion of which I complain. The authority for the statement is the italicized portion in the quotation from Glessner v. Waterloo, C.F. N.R. Co., supra,
"The law does not undertake to direct whether a traveler upon the highway shall first look to the right or to the left before *269 crossing tracks, or to fix the place where observation shall be made. It does require that the traveler shall look at a place where he can see, and that he shall then be in a situation toavoid injury by the operation of cars upon the tracks." (Italics supplied.)
No authority in support of the italicized statement is cited in the Glessner case. In Carlin v. Thompson, supra,
"It is sufficient to say that the plaintiff, coming from behind known and clearly visible obstructions nearly 300 feet from the crossing, should be held to the rule that an ordinarily prudent person would have his car under such control that if he then discovered danger of collision he would be able to stop in time to avert that danger."
I challenged the soundness of the statement with supporting authorities in my dissent in that case.
The majority opinion placed upon the appellant not only the duty of exercising ordinary care under the circumstances but also imposed upon him the absolute duty of having his car under such control as to enable him to stop if necessary to avoid collision. The happening of the collision is taken as conclusive evidence of such lack of control, and from it it is reasoned that appellant was guilty of contributory negligence as a matter of law.
The proposition asserted in the majority opinion was rejected by this court in McKern v. Wabash R. Co., supra,
"The appellee * * * plants its justification of the directed verdict on the single proposition that plaintiff must be held chargeable with contributory negligence as a matter of law, because he did not have the movement of his car under such control that he could have stopped it in time to avoid the collision after he discovered the approach of the train. * * * If this be true, *270 the road to an affirmance of the trial court's ruling is easy. But the proposition so advanced is certainly not the law. * * * Appellee argues with much earnestness that, as a matter of law, reasonable care required plaintiff to have such control of his car as would enable him to stop it, no matter what the circumstances might be, and without any reference to the reckless and unlawful operation of the train. * * * It would seem that this question has been decided otherwise so often that the arraying of authorities thereon might well be regarded unnecessary; but that we may not seem to ignore the appellee's position, we extend this opinion for a recurrence to some of the rules and principles which have characterized the law of negligence since the time `whence the memory of man runneth not to the contrary.' * * * It is not within the province of this court to establish a rule by which any specific act or omission shall constitute negligence as a matter of law, without any consideration of the circumstances attending and surrounding it. * * * If we proclaim the rule that every driver approaching a crossing must stop his car, or have it under such control that he can stop it in time to avoid a collision, at the peril of being held negligent as a matter of law, without consideration of the circumstances which have led him into the place of danger, he will thereby be compelled to become his own insurer in every case of collision, without regard to the company's negligence, or to other modifying circumstances; and the statutes and ordinances and rules of the common law, intended for his protection, will be rendered wholly nugatory."
From the concurring opinion of Stevens, J., in the Dombrenos case, at page 1179 of
"He was not bound to drive at such a rate of speed, when approaching the crossing, or to have his car under such control, as to preclude the possibility of a collision."
In Butterfield v. Chicago, R.I. P.R. Co., supra,
"The arguments urged by counsel have but one logical conclusion, and that is that a person using a public railway crossing must assume all the risk of its negligent or reckless misuse by *271 the company, if by any possible measure of caution the danger can be discovered and avoided. That such is not the law is too manifest for discussion. It may be, as counsel say, that `times have changed,' but no change of time or circumstance can justify the judicial repudiation of a fundamentally sound principle of law or justice."
Under repeated decisions of our court, if the case at bar had been submitted to the jury under instructions embodying this rule of the majority opinion they would have constituted reversible error. I set them out and quoted from them in my dissent in Carlin v. Thompson, supra,
Unless we are to repudiate these holdings of the court, appellant was under no absolute duty to have his car under such control as to enable him to avoid a collision. If this theory of law is applicable in railroad-crossing cases, and the court is to be logical and consistent, it should apply to all negligence cases. We should hold that a plaintiff who is approaching a highway intersection is bound not only to exercise ordinary care under the circumstances but that he must have his car under such control as to avoid, at his peril, collision with other vehicles. If a collision occurs, he has not exercised control, and is guilty of contributory negligence as a matter of law. A like rule would necessarily follow as applied to other plaintiffs in negligence cases.
With the majority opinion as a guide respecting contributory negligence in railroad-crossing cases, no other conclusion can be logically reached, where the no-eyewitness rule is not available, but that the traveler must at his peril avoid colliding with a train. There is no logical stopping place short of such a result. That is not ordinary care. It is extraordinary care imposed not by a fact-finding body but by the court as a matter of law. *272
This theory, in effect, applies the assured-clear-distance rule to travelers in railroad-crossing cases. The traveler is required as a matter of law to stop in time to avoid colliding with a train that may appear suddenly in front of him, even though the statutory signals were not given. And in the application of this harsh rule the majority, in effect, deny to the traveler the right to assume that the railroad will give the warning signals which the legislature has required it to give for the benefit of the traveler. Such right of assumption which the majority opinion ignores is now recognized in the assured-clear-distance statute (section 5023.01, Code, 1939), as well as in several decisions of this court. See Central States Elec. Co. v. McVay,
If the appellant had been approaching an intersecting highway instead of a railroad crossing, and had collided with a motor vehicle instead of a train, other conditions being the same, no member of this court would seriously suggest that he was contributorily negligent as a matter of law. See Holden v. Hanner,
The case for appellant here is much stronger than was plaintiff's case in our last pronouncement on this question, Coonley v. Lowden, supra, decided February 8, 1944,
1. Here appellant was a stranger to the crossing and to the vicinity. In the Coonley case, plaintiff lived a little over a block from the crossing and was familiar with it.
2. The view of the crossing here was much more effectively obstructed than in the Coonley case. There it was a controverted matter whether the view was obstructed. Here it is conceded, as is apparent from the following answer of the railroad's assistant engineer to a question by the railroad's attorney:
"Q. Mr. Bost, it is fair to say, is it not, to the jury, that this highway, south of the main line track, as you proceed north *273 upon it to the track, is substantially obstructed, so far as the view of approaching trains is concerned, up to within fifty feet of the main line track? A. Yes, sir, along the farmstead — along the Weaver farmstead." (Other witnesses put this distance at less than 50 feet.)
3. Appellant here clearly exercised more care than did plaintiff in the Coonley case in looking and listening for a train, and especially, in operating his car in an attempt to avoid a collision. Here three witnesses, Mrs. Krieps, Anderson, and appellant himself, testified both on direct and cross-examination the car was brought to a complete stop before the rocker arm of the engine struck it. In the Coonley case plaintiff's car neither stopped nor changed its course. Here appellant came very close to avoiding injury. Because he did not succeed, the majority holds he was guilty of contributory negligence as a matter of law.
It is apparent from reading the majority opinion and the dissenting opinion of Justice Smith in the Coonley case and the majority opinion herein that the underlying theory of the Coonley dissent has now become the view of the majority of this court. Why the majority here repudiates the majority opinion in the Coonley case and adopts the philosophy of Justice Smith's dissent in that case, by indirection, without even a mention of the Coonley case, is hard to understand. That case should either be followed, distinguished, or directly repudiated.
This dissent has reached a wearisome length. Principles of law long considered fundamental in cases of this kind have been dwelt upon because the majority opinion has disregarded them. I have thought it timely to discuss them at length and to call to mind the Scriptural injunction to "Remove not the ancient landmark, Which thy fathers have set."
I would reverse.
*274OLIVER, GARFIELD, and MULRONEY, JJ., join in this dissent.