193 Iowa 385 | Iowa | 1921
— The appellant states that the only question in the case is whether plaintiff was guilty of contributory negligence, as a matter of law. Perhaps a more accurate statement of the question would be whether the trial court abused its discretion in granting a new trial. Briefly, the negligence alleged is that defendant was exceeding the speed limit, as provided by the ordinances of the town;' was operating the train at said place at an excessive and negligent rate of speed; failed to give proper signal and warning of the approach of the train; had failed to equip the crossing with a gong or other signal, to warn persons using the crossing of the approach of trains; had numerous box cars, trains, etc., standing upon the sidetracks, close to the crossing, in such a manner as to obscure the vision of the driver while about to drive over the crossing.
The accident occurred about 9 o’clock A. M., November 6, 1918. Plaintiff’s minor son was driving the car. He was driving west, 10 or 12 miles an hour. The train was a. passenger train, approaching from the south, and was running about 25 or 30 miles an hour when the driver says he first saw it. East of the main line track, at the point of the collision, is a sidetrack, leading to an elevator. The distance between the inner rails is 43 feet. The evidence tends to show that the day was
In stating his reasons for granting the new trial, the trial court said, among other things, that the reason for directing the verdict was that he took the view that the physical facts, as disclosed by the evidence, necessarily showed that plaintiff was guilty of contributory negligence; that he later concluded that it was erroneous to assume the facts upon which he acted in directing the verdict; that, in sustaining the motion for new trial, he concluded that it would not be physically impossible, for the driver to have looked at the point where he says he did ■look, and not have seen the train within the scope of his vision.
To sustain his position that plaintiff was guilty of contributory negligence, as a matter of law, appellant cites Artz v. Chicago, R. I. & P. R. Co., 34 Iowa 153; Bloomfield v. Burlington & W. R. Co., 74 Iowa 607; Williams v. Chicago, M. & St. P. R. Co., 139 Iowa 552; Beemer v. Chicago, R. I. & P. R. Co., 181 Iowa 642; Powers v. Iowa Cent. R. Co., 157 Iowa 347; Sohl v. Chicago, R. I. & P. R. Co., 183 Iowa 616; Sturgeon v. Minneapolis & St. L. R. Co., 187 Iowa 645; Sachett v. Chicago G. W. R. Co., 187 Iowa 994; Waters v. Chicago, M. & St. P. R. Co., 189 Iowa 1097; Reynolds v. Inter-Urban R. Co., 191 Iowa 589;
On the other hand, appellee cites, to sustain its position that it was a question for the jury whether plaintiff’s son, the driver, was guilty of contributory negligence, Joyner v. Interurban R. Co., 172 Iowa 727; Pilgrim v. Brown, 168 Iowa 177; Hawkins v. Interurban R. Co., 184 Iowa 232; Arnold v. Douglas & Co., 176 Iowa 405; Wiese v. Chicago G. W. R. Co., 182 Iowa 508; Wescott v. Waterloo, C. F. & N. R. Co., 173 Iowa 355, 358; Fisher v. Cedar Rapids & M. C. R. Co., 177 Iowa 406; Hollgren v. Des Moines City R. Co., 174 Iowa 568; Bettinger v. Loring, 168 Iowa 103; Toney v. Interstate Power Co., 180 Iowa 1362. See, also, Griffin v. Chicago, R. I. & P. R. Co., 192 Iowa 1170. These cases are more nearly applicable to the instant ease, and are more'nearly in point than are the cases cited by appellant.
Numerous cases are cited by appellee in regard to the discretion of the trial court in granting a new trial, and that the Supreme Court is more reluctant to interfere, where a new trial is granted, than where it is overruled; putting it another way, that the appellate court will more closely scan-a ruling refusing a new trial than one granting it. Among other cases, they cite Carlisle v. Davenport & M. B. Co., 178 Iowa 224; Mullong v. Mullong, 178 Iowa 552; McDonald v. Mutual Life Ins. Co., 178 Iowa 863. Numerous other cases might be cited, but the rule is so well settled that it is unnecessary to cite further cases.
One difficulty with these crossing cases is that the evidence is not always exact. Witnesses testify that an auto is going about 10 or 12 miles an hour; that the train is going about 25 or 30 miles an hour; that, from a point about a certain distance, a person could see up the track about so far. The driver says he was about 20 feet from the train when he first saw it, and was then about 20 feet east of the track, etc. These are but estimates. No one pretends that the distances are exact. It is important that
Under all the circumstances, and without further discussion of the facts or the cases, we are of opinion that the trial court did not abuse its discretion in granting a new trial. The judgment is — Affirmed.