Guttenfelder v. Chicago, Rock Island & Pacific Railroad

Supreme Court of Iowa

Guttenfelder v. Chicago, Rock Island & Pacific Railroad

52 N.W.2d 50, 243 Iowa 755, 1952 Iowa Sup. LEXIS 422

CourtSupreme Court of Iowa

DecidedMarch 4, 1952

DocketNo. 47974

StatusPublished

This text of 52 N.W.2d 50 (Guttenfelder v. Chicago, Rock Island & Pacific Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Guttenfelder v. Chicago, Rock Island & Pacific Railroad, 52 N.W.2d 50, 243 Iowa 755, 1952 Iowa Sup. LEXIS 422 (iowa 1952).

Pincite

Opinion

Mantz, J.

This action grows out of a collision between an eastbound passenger train of defendant-railway company and an automobile driven by Walter Guttenfelder, Jr., son of plaintiff, in the town of Durant, Iowa, wherein the driver was killed. Plaintiff sued to recover funeral expenses and loss of services of said minor son. The accident happened about 10 a.m. on February 26, 1950, at the intersection of a public street crossing where Calhoun Street of said town crosses the Rock Island tracks.

I. Plaintiff’s petition was in two counts, each based upon [757]*757a claim of negligence: (1) In the negligent operation of the train involved, and (2) that the railroad had failed to construct and maintain a good, sufficient' and safe crossing as required by law, and also that the railroad was negligent in failing to place sand, cinders or ashes on the roadway at such crossing, which crossing was then covered with hard-packed snow and ice.

Defendant admitted the collision resulting in the death of the minor son; denied any negligence on its part and alleged that deceased was guilty of contributory negligence.

At the conclusion of the evidence, the trial court upon motion of the defendant withdrew from the jury that part of Count II of plaintiff’s petition charging that the defendant was negligent in failing to place sand, cinders or ashes on the crossing. The other parts of both counts were submitted to the jury.

A special interrogatory upon the request of the railroad was submitted: “Was the car driven by Walter Guttenfelder Jr. in motion at the time it was struck by defendant’s train?” The jury answered the interrogatory “yes.” There was a general verdict by the jury in favor of the railway company. The plaintiff moved for a new trial on the grounds that an instruction with respect to the duty of the railway to place sand, gravel or ashes on the crossing was error; also, the court erred in certain rulings on the admission of evidence with respect to the presence of a pile of ashes near the crossing, and certain evidence which tended to impeach one of plaintiff’s witnesses by showing that the witness had made statements out of court inconsistent with his testimony.

The court overruled the motion-as applied to Count I of plaintiff’s petition but sustained it as to Count II on the ground that the giving of instruction 10A with respect to the duty of the railway company as to putting sand or cinders on the crossing was erroneous.

Both parties applied to this court for permission to appeal in advance of judgment. This court gave such permission. These appeals followed.

II. The town of Durant has a. population of approximately 1100. It is situated on the double-track main line of the railway company which runs east and west through such town. The railway in passing through the town crosses a number of streets, [758]*758including the one in question, Calhoun Street, which is crossed at right angles. The crossing in question has near it the regular upright warning signs. Approximately a block north of the railway tracks and paralleling them through the town is primary highway No. 6, a paved highway running through Iowa. On both sides of said highway where it crosses the 'streets of Durant there are the official highway stop signs. Calhoun Street had a slight downgrade where it approaches the railway from the south. The railroad tracks had plank approaches on both sides of the rails and the north track was,a few inches higher than the south track. There were some mercantile establishments on Calhoun Street on both sides of the crossing. None of these was close enough to obscure the view of the tracks for some distance back from the tracks. At a point 25 feet south of the south track there was an unobstructed view to the west of approximately % of a mile and at a point 43 feet south there was a view of about 600 feet. The south track was for eastbound and the north track for westbound trains. On both tracks the space between the rails was 4 feet 8% inches and the distance between the two tracks was 8% feet, making the distance between the two outside rails about 18 feet. The planks on both sides of each rail were 16 feet long, 10 inches wide and 3 inches thick. Between the two inside planks there was a gravel filling.

The G-uttenfelders had lived in Durant for a number of years and the father owned a farm near the town. The father and Walter used the Calhoun Street crossing and the father^ stated that the deceased son crossed over it frequently; also, that the son had driven a car fer a number of years. At the time of the accident the son was a student in the Durant High School and was active in school affairs and was a member of the basketball team.

The collision in which Walter Guttenfelder, Jr. was killed took place between 9 and 10 a. m. Sunday morning. Walter was driving a Ford car north on Calhoun Street toward the railway intersection. His car entered Calhoun Street from a side street a block south of the railway crossing. He was alone in the car. The speed of the car was variously estimated by witnesses at from 10 to 15 miles per hour. About the same time an eastbound [759]*759train, designated the “Roeket”, approached such crossing from the west. Its speed was about 79 miles per hour. An eyewitness who was on Calhoun Street and just north of the intersection testified that he saw the Guttenfelder car coming from the south; that he watched it all the way; that it was not traveling very fast; that the witness heard the whistle of the approaching train and thought that the Guttenfelder ear was going to stop; that at a point some 43 feet south of the track the car acted as though its brakes had been applied; the rear end made a sort of a “fish tail” movement; that the car did not stop and kept going ahead and when on the south track was hit by the front of the Diesel engine and carried down the track a distance of several hundred feet. Right after the accident an examination of the street south of the crossing showed that the wheels of the car had slid north to the crossing from a point 43 feet south. The car was a complete wreck. The evidence of the witnesses and the marks on the car indicated that the ear was on the south track when hit.

For several days the weather had been quite cold and for two or three of such days the temperature was below zero; snow had been falling at various times and some had fallen a few hours before the accident. It was not drifted but on the streets it was hard packed due to auto and truck travel. There was a creamery close by and the evidence showed that many trucks went over this street to get to the creamery. School buses also used this street and crossing. On the day following and later, pictures were taken of the crossing, the railway tracks, some adjacent buildings and the wrecked car. Some of these were taken by a commercial photographer and on the afternoon of the day following the accident. There was some evidence that the weather was warmer the twenty-seventh and that when the pictures were taken some of the snow and ice had melted at the crossing. We have set out below Exhibits A and B. Exhibit A shows the railway tracks and the crossing looking west. The Guttenfelder car approached the- crossing from the south — the left side of the exhibit. Exhibit B shows Calhoun Street and the railroad crossing.

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