Crawford v. Chicago Great Western Railway Co.

80 N.W. 519, 109 Iowa 433

• Court: Supreme Court of Iowa
• Decided: October 20, 1899
• Status: Published

Opinion

Robinson, O. J.

The evidence submitted on the part of the plaintiff tended to show the following facts: A railway of the defendant extends through. Melbourne, in Marshall county, southward. At a point about two miles south of the town it is crossed a.t right angles by a wagon road, extending from east to- west. About 40 rods east of the crossing is a school house. The surface of the ground over which the road runs descends gradually from a point three hundred feet west of the school house to a point from one hundred and fifty to- one hundred and twenty-five feet east of the railway track, where there is a strip' of level ground about twenty-five feet in width, called by some witnesses a “swale.” From a point one hundred and twenty-five feet east of the track the surface of the ground inclines upward to the track. At a point three hundred feet north of the crossing is the south end of a. railway cut, and the ridge through which it passes extends eastward. A person going from the school house westward can see a railroad train approaching from the north at all times until within one hundred and fifty feet of the track, and from that point to the crossing can see a train approaching from the north a distance of five hundred or six hundred feet. The plaintiff resides one-half mile west of the crossing. In November, 1891, an employe of. the plaintiff named Olaflin, with a team and a wagon of the plaintiff, hauled a load of grain to Melbourne, and while returning was struck at the crossing by a train of the defendant running southward, and killed, the two horses were killed, and the wagon and harness were destroyed. The plaintiff seeks to recover the value of the property destroyed.

• At the time of the accident the train was running at a speed of from forty to fifty miles an hour, and approached the crossing without the ringing of a bell or the blowing of a whistle. As Olaflin drove towards the crossing, he was standing in the wagon facing westward, and the team was trotting slowly. When he reached the swale the team was checked, if not stopped, for a. moment, but it is not shown whether he looked for a train, or, if he did, which way be looked. He drove westward from tbe swale, and 1 tbe accident occurred as stated. It is clear that, bad be looked for tbe train at any time after be was within from one hundred and twenty-five to fifty feet of tbe track, be would have discovered.bis danger, and avoided tbe accident. Tbe plaintiff contends that, as it was tbe duty of tbe defendant to’ give signals of its approach to tbe crossing, Claflin bad a right to rely upon its doing so, and was not required to stop bis team, and look and listen, if be could, without so doing, have beard tbe signals, bad they been given. Tbe plaintiff also contends that, as Claflin lost his life in tbe collision, tbe presumption that be exercised i 2 due care must prevail. That srrcb a presumption is proper, and must be given weight, may be conceded, but it cannot prevail aga'ist evidence which shows that be could not have exercised dufe cajje. That tbe defendant was negligent appears to have been fully established. See Code, section 2072. Tbe burden was on tbe plaintiff, however, 3 to show, not only negligence on tbe part of defendant, but also that his employe was not guilty of contributory negligence. Baker v. Railway Co., 95 Iowa, 163. Before there can be a recovery on account of tbe negligence of a railway company in failing to give tbe statutory signals, or for running at an excessively high rate of speed, it must be shown that tbe person suffering injury from tbe negligence did not contribute to the injury by negligence on bis part, and be cannot, in all cases, rely upon tbe railway company to give tbe signals required by statute. A person possessing tbe ordinary powers of seeing and bearing cannot, without negligence on bis part, knowingly approach a railway crossing, and fail to discover an approeh-ing train, which be can readily see or bear a sufficient length of time to enable him, with reasonable effort, to avoid danger. Sala v. Railway Co., 85 Iowa, 678; Banning v. Railway Co., 89 Iowa, 74; Moore v. Railway Co., 89 Iowa, 223. So far as the record shows, Claflin’s eyesight and bearing were good, and be knew tbe crossing. That bis negligence contributed to tbe accident and tbe destruction of tbe property in question is clearly shown, and tbe district court properly directed a verdict for tbe defendant. Its judgment is therefore AEEIRMED.