Russell v. Scandrett

281 N.W. 782, 225 Iowa 1129
CourtSupreme Court of Iowa
DecidedOctober 25, 1938
DocketNo. 44395.
StatusPublished
Cited by3 cases

This text of 281 N.W. 782 (Russell v. Scandrett) 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
Russell v. Scandrett, 281 N.W. 782, 225 Iowa 1129 (iowa 1938).

Opinion

Stiger, J.

— On January 20, 1936, about 8 o’clock in the morning, Raymond Howie and George Allen Russell, plaintiff’s *1131 intestate, left the town of Merrill, Iowa, in a truck operated by Howie intending to go to Meckling, South Dakota, to get some alfalfa for their employer. They reached Elkpoint, South Dakota, about 9:30 and continued on their journey traveling in a northwesterly direction on a highway which was parallel to and south of defendants’ railroad track. About four miles west of Elk-point the highway turns north, crossing the track at right angles, and then continues on the north side of the track and parallel to it. When all but the rear portion of the truck had cleared the track at the crossing, it was struck by a train which was going in a northwesterly direction and Mr. Russell died from the injuries received. The collision occurred about 10 o’clock in the morning. The railroad track runs west out of Elkpoint in a straight line to the crossing and parallel to the highway and from the crossing where the accident occurred there is an unobstructed view of the track to the east, from which direction the train was approaching, for two miles. The jury returned a verdict for the plaintiff. Plaintiff’s intestate will be referred to as plaintiff.

One of the errors assigned by the defendants is that the court erred in refusing to direct a verdict for the defendants on the ground that the evidence conclusively shows that plaintiff’s decedent was contributorily negligent as a matter of law in failing to discover the approach of the train in time to warn the driver of the truck before the truck was driven upon the crossing because the train was in plain view when the decedent looked down the track; that if he looked down the track in the direction from which the train was approaching as he was required by law to do, he either saw the train or could have seen the train, and in either event was contributorily negligent, as a matter of law, in directing, permitting, or allowing the truck to be driven upon the railroad crossing.

In approaching a railroad crossing it is the duty of a traveler on the highway to look for trains, and to see a train if it is in plain sight, and if he goes upon a crossing in front of a train which was in plain view as he approached the crossing he is guilty of contributory negligence as a matter of law. Meier v. C. R. I. & P. Ry. Co., 224 Iowa 295, 275 N. W. 139; Cashman v. C. B. & Q. Ry. Co., 217 Iowa 469, 250 N. W. 111; Albright v. C. R. I. & P. Ry. Co., 200 Iowa 678, 205 N. W. 462 ; Sohl v. C. *1132 R. I. & P. Ry. Co., 183 Iowa 616, 167 N. W. 529; Yanaway v. C. R. I. & P. Ry. Co., 195 Iowa 86, 190 N. W. 21.

While the view of the track from, the crossing to the east was entirely unobstructed under ordinary conditions, plaintiff claims that because of atmospheric conditions and because of frost on the train, the view of the track and approaching train was materially obstructed which made the issue of plaintiff’s contributory negligence for the jury.

The ground was covered with 8 or 10 inches of snow, the temperature at the time of the accident was six degrees below zero, the sky was cloudless, and the ,sun was one-half way to its zenith. Plaintiff contends that the view of the train was obstructed for the following reasons: First, that when the car was stopped 15 feet south of the track and the occupants looked east along the track under the above atmospheric and weather conditions the vision of a man with normal eyesight would be affected; second, that the engine and train was covered with frost and thus so camouflaged and blended with the surrounding white landscape that the view of the train was materially obstructed when plaintiff looked. Plaintiff relies on the testimony of Howie and Dr. Frederick Roost to establish the above propositions. ¥e set out the following testimony given by Howie:

“When we left Sioux City, the sun was up and the light was clear and glistening frosty. The snow was between 8 and 10 inches deep. From Elkpoint we drove about three miles parallel with the railroad track and then turned at right angles to the crossing on the tracks. Russell was sitting on the right-hand side of the closed cab and I was on the left side. The windshield was clear. The rear glass of the cab was possibly slightly frosted. The right-hand glass of the door was clear. The truck was a 1934 model Reo semi-trailer and was in good mechanical condition. Three miles west of Elkpoint the road crosses the tracks and then parallels the tracks on the north. The road turns at a right angle. As I started to make the turn, I glanced out through the window, I already saw through the windshield and there was nothing coming straight ahead nor from the west. Russell was sitting on the right-hand side and was nearer the approaching train than I was. He was in a better position to see the train and I was depending on him to warn me of this train. Russell’s eyesight was normal and his hearing was alright. I *1133 asked Russell to open tbe door and look to the east to see there were no trains coming. The truck was stopped about 15 or 20 feet south of the tracks. On previous trips Russell and I took the same road and went over this same crossing. When I stopped the truck, and asked Mr. Russell to open the door and see if any trains were coming he opened the door and then said, ‘go ahead’. Russell opened the door, I looked and seen nothing. Russell closed the door and said ‘go ahead’ and we proceeded to cross the tracks. The snow was level and around 8 or 10 inches deep. Nothing of the railroad showed except the tops of the rails. The railroad track is a little above the ground along there. I couldn’t see the ties. Ms I looked down along the railroad tracks all I saw was the clear glistening tops to the rails for about 400 or 500 yards. I did not see anything approaching on those tracks from the south east. I shifted into low second and started crossing the tracks. The front end was crossing the tracks and possibly six or eight feet of the trailer was still on the tracks when I heard a whistle just scream and glanced and .saw a cloud of smoke and crash and when I came to I was on the east side of the road north of the tracks. When the train whistled it seemed it screamed right at us just the second, you might say, that it hit. I never heard anything just prior to this whistle. I didn’t hear a bell. When I stopped on the south side of the tracks the door was open and the sun was shining directly in the door of the cab. When I first saw the train when I came to it was backing up and was frosted in the rear and also what I could see of the coaches. ’ ’
“Q. What about the engine? A. You couldn’t get a * * * you hadn’t but a second to look at it at that time coming right down onto you, and it seemed as if it * * * I know the north side of it was covered with frost.”

A hypothetical question was propounded to Dr. Roost which described the weather conditions above referred to. A portion of the question reads as follows:

“Q.

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Bluebook (online)
281 N.W. 782, 225 Iowa 1129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-scandrett-iowa-1938.