148 Iowa 278 | Iowa | 1910
At the close of the evidence defendant moved for a directed verdict. This motion was denied by the trial court and error is assigned upon such ruling, and we give our first consideration to this question.
The accident involved in the inquiry occurred on February 17, 1907, at about two o’clock a. m., at a highway crossing defendant’s railway between Jerome and Seymour. The plaintiff and one Linn had procured a team
It cannot be said as a matter of law that such a mistake, if made, would be negligence. The testimony on behalf of plaintiff shows that the train approached the crossing without any signals, either of whistling or ringing the bell. It must be borne in mind also that this is not a case where the plaintiff or his driver drove upon the track. The defendant has argued this case as though it were the ordinary case of a plaintiff driving upon the track in necessary view of an oncoming train, and the authorities cited are cases of that character. In such case the power of the driver to save himself by stopping his team exists ordinarily up to the very moment that he passes upon the track, and his duty to exercise his senses of sight and hearing before he does so is imperative. In this case, the plaintiff and the driver did not come voluntarily within twenty-five feet of the crossing proper, although the lateral distance between them and the track was somewhat less. True, they were within the zone of danger in that their proximity to the track might result in the frightening of their horses by the passing train. But they had to en-‘
It is not claimed that this instruction is not correct as an abstract^ statement of the law. It is claimed, however, that by applying it to the particular evidence of this case it would permit the jury to find that even though the plaintiff had stopped and looked and listened only when about'
Without passing upon the abstract correctness of this instruction, it is clear to us that it presents no ground of complaint to the appellant. This instruction dealt with contributory negligence as a question of law. Surely, if the driver looked for an approaching train and saw none, and there was none .in plain sight or hearing so situated as to suggest a reasonable probability of danger in going upon the track or in approaching thereto, it can not be said as a matter of law that the plaintiff was guilty of contributory negligence in merely failing to duplicate the action of the driver. The instruction gave the plaintiff no protection against the negligence of the driver in this respect. If the driver looked and failed to see or hear when he ought to have seen or heard, then his looking and listening was not a protection to the plaintiff under this instruction. The driver was in a better position to look and listen than was the plaintiff. If the driver did look and listen and did exercise reasonable care under all circumstances, it was a proper circumstance to go to the jury on the question of plaintiff’s contributory negligence. The instruction complained of went no further than this, and
Y. Other points are presented by ■ appellant. But they are so related to the points already considered that what we have said is decisive of them all.