183 Iowa 616 | Iowa | 1918
Shortly after 10 o’clock in the morning of March 30, 1915, Rrnst Sohl was driving, in a southerly directioii, an auto truck with beer for delivery at Nahant, and, as he reached the center or east-borfnd track, he was struck by
He was 22 years of age, in full possession of all his senses, and entirely familiar with the crossing and its approaches. The day was clear, and, according to the evidence, he might have seen, had he looked, the approach of the train at a distance of 1,000 to 1,200' feet from the crossing. True, there were some willow trees north of the north right of way fence. There was a clump of these near the highway, and then none for nearly 200 feet west, and then trees. At that particular season, these were without leaves, and,’ as photographs disclose, interposed little or no obstruction to seeing a train approaching from that) direction. These trees were 95 feet from the east-bound track. Another row of trees, close together, was 230 feet from the track, and still another, over 600 feet therefrom.' Telegraph poles, with 5 cross-arms and numerous wires, extend along the right of way about 32 feet north of the tracks. The highway fences were about 60 feet apart. There was an icehouse near the track, 1,259 feet southwest of the crossing, and the whistling post, 1,526 feet. One could not see a train until past the second row of trees, 230 feet from the track; but, from that point on, the evidence is undisputed that a clear vision of a train when beyond the icehouse was -available to anyone who looked. But two of the four witnesses who saw the col
“Q. Now, that was not a solid row of trees, was it? A. No, sir. Q. There were some little willow trees in a separate cluster, then an open space? A. Yes, sir. Q. Then some little willow trees farther down along the fence? A. Yes, sir. Q. Then an open space? A. Yes, sir. Q. Then another cluster of little willow trees along the fence? A. Yes, sir. You can see plainly the icehouse there and the railroad track in front of it for a distance of 1,000 or 1,200 feet west of this crossing, and you can see that all the way from the time you are 250 feet north of the crossing, traveling down the highway. That would be looking in the direction from which the said train was coming the day this accident happened. At any point from a distance of 250 feet of the railroad, traveling down that highway towards the track, you could look towards the icehouse and railroad track and see the track there. You could see it perfectly plainly and conveniently, and you could see that track down at least 1,200 feet to the icehouse. As a matter of fact, you could see beyond that, after you got behind the second row of trees. After yoii passed that road, as a matter of fact, you could see plainly down there, I guess pretty nearly half a mile. It is straight track.”
The other witness, Robert Jager, who was standing near a pigpen across the highway almost directly east from the second row of trees, testified that he saw the decedent driving the auto truck towards the railway track from about a half mile north until struck; that it was going 6 or 8 miles an hour; that he heard the rumble of the train as it approached; that he saw the train when beyond the icehouse, as it came in a northeasterly direction; that he was somewhat higher than the railway; that, when a person reaches the right of way, he can see down the track a long distance.
“There were some trees there that have been chopped
The testimony of these witnesses is in harmony with conditions as shown by other evidence, including photographs, and leaves no doubt that the decedent, if he looked, must have .seen the approaching train. The railroad crossing was a place of danger, and he was bound to look and listen before going upon the track. Had he done so, he must have seen the approaching train; and whether he looked or failed so to do, he was equally- negligent in driving in front of the rapidly approaching train, which was in plain sight.
Jager testified to having observed decedent from a half mile north of the track until struck. Whatever he did then, aside from looking or listening, this witness must have seen; and, according to- his story, decedent drove, without stopping, in front of the approaching train. Of course, the decedent might have looked and listened without others’ observing his doing so. His instinct of self-preservation could have prompted him to do no less than look out or listen for an approaching train, as he neared the railway tracks. The situation was such that, in looking out for his own safety, he < must at least have looked or listened after passing the second row of trees; and, had he done so, he would have had ample warning of the approach of the train. Conceding that he did all that the promptings for his own safety required, the undisputed evidence discloses
Neither Dalton v. Chicago, R. I. & P. R. Co., 104 Iowa 26, nor Gray v. Chicago, R. I. & P. R. Co., 143 Iowa 268, is in conflict with this conclusion, nor are other cases which are relied upon. In the former decision, the collision occurred on a dark night, at 3:50 o’clock A. M., in the absence of any witnesses; and in the latter, there was evidence tending to show that the view of the track was obstructed, and there was no witness as to what plaintiff’s decedent did, much of the way in approaching the crossing. For all that appears, he drove on heedlessly to his own destruction;
While a railway company may not operate its trains over highway crossings at such a speed as, in view of local
The case is readily distinguishable from Burnett v. Chicago., M. & St. P. R. Co., 172 Iowa 704; as therS, the night was dark, and the injured was deceived by the dimness of the headlight as to the distance of the train. Street car cases are distinguishable by the difference in situations. See Adams v. Union Elec. Co., 138 Iowa 487.
The undisputed evidence disclosed that the day was clear and the sun shining, the railroad straight and level,
There was no error in directing the verdict for defendant. — Affirmed.