Smith, J.
One question only is presented on this appeal: Was there sufficient evidence of plaintiff’s freedom from contributory negligence to warrant submission of that issue to the jury ? Plaintiff had thé burden of proof, but on tbe motion to direct verdict be was entitled to have the evidence bearing on that issue viewed in tbe light most favorable to himself. It becomes necessary to set out the substance of tbe record with that in mind.
Defendants are trustees of the property of the Chicago, Milwaukee, St. Paul & Pacific Bailroad Company. One of its
lines runs east and west through the village of Sexton, in, Kossuth county. The collision in question occurred about noon on June 8, 1942, at a street or highway crossing in said village. Plaintiff, then twenty years old, was driving his automobile north toward the crossing on a graveled road or street. His car was equipped with four-wheel brakes and newly purchased tires, all in good condition.
Defendants’ freight train approached the crossing from the east. It was a clear day. The windows of plaintiff’s car were down. He was a stranger to the vicinity but had driven south over the same crossing about an hour earlier the same day.
He testified he knew he was approaching the railroad track and that “they run a lot of passenger and freight trains on the track, some of which run pretty fast and some not so fast. ’ ’ He says he was listening for a train as he proceeded into the railroad right of way. He heard no whistle and no bell. Two witnesses, Mrs. Joseph Krieps and Wallace Anderson, who were at a point in the highway in front of the Krieps house 275 to 300 feet south of the crossing testified quite positively that no signals were sounded. Other witnesses were equally positive that the statutory signals were given.
Plaintiff and the two witnesses referred to fix the speed of his car , as he passed these witnesses and approached the crossing at fifteen to twenty miles per hour. Before reaching the Krieps house he had been going thirty-five to forty. The view to the west (on his left) was open and unobstructed; to the east there were obstructions:
‘ ‘ I knew that was the dangerous side, so I never paid much attention to the left-hand side.”
Two tracks of the railroad cross the highway at this point. The northerly one was the main track,' the southerly one a passing track. The south rail of the main track and the north rail of the south or passing track were 11% feet apart. The distance between rails on each track is 4 feet 8 inches. '
The collision occurred on the main track, which, according to plaintiff’s own testimony, is 45 feet from the south edge of the right of way. On the east side of the road, just south of the crossing, is the Weaver place, bounded on the north by the right
of way, with wire fence between. One witness says the level of the ground of the Weaver lot is 4 to 5 feet higher than the level of the highway. Another says it is some higher.
Trees and bushes and the house on the Weaver lot obstruct the view to the east of one on the highway approaching the crossing from the south until he reaches the edge of the railroad right of way. A large cottonwood tree near the north edge of that lot overhangs the right of way “four or five or six feet.” The witnesses also enumerate weeds in the right of way as obstructions but it clearly appears they were not high enough to interfere with the view of an approaching train. Right at the corner of the Weaver lot is a telephone pole and there are high-line poles running east along the railroad right of way. Both highway and railroad are level at the crossing and in each direction so far as material to this inquiry.
Plaintiff’s own testimony (corroborated by' the testimony of witnesses on his behalf) is to the effect that at a point 45 feet south of the railroad track (at the edge of the right of way) he could see 75 to 100 feet down the track to the east, that the cottonwood tree and the poles and bushes prevented his seeing farther in that direction. That was the last point at which he looked except just as the train was upon him:
“Q. At thirty-five feet how far could you see down the track? A. I don’t know. I was not looking — I was not looking at thirty-five feet down the track, or forty feet either. Q. The only point you want to tell this jury you looked was at the corner of the Weaver fence and the right-of-way where your view to the east was obstructed so you could only see seventy-five to one hundred feet down the track? Ts that correct? A. Yes, around in there. I could not give exact measurements because T don’t know about that. Q. That is the only place you looked to the east? A. Yes. Q. To discover an approaching train? A. The second time I looked the train was coming down the track. Q. That was" too late then? A. T didn’t get stopped then. Q. After you passed the point of forty-five feet, or the right-of-.way fence and the Weaver lot, as a matter of fact the view substantially increased so you could see any distance down the railroad tracks to the east? A. Oh, I think you have to get
right up to the tracks before you can get a clear view down to the east. I was down there since the accident and I purposely looked for that.”
Mrs. Krieps estimates (without having measured) that up to a point 25 feet south of the main-line track the view to the east was
completely
obstructed. Anderson says
“you
would have to be about twenty-five or thirty feet from the main track” before you would have an unobstructed view down the railroad.
Plaintiff, as we have said, testifies that he approached the south edge of the right of way at fifteen or twenty miles per hour. It is difficult at this point to summarize his testimony. After testifying that he looked at the point 45 feet south of the main track his testimony is as follows:
“Q. And you didn’t look again? A. I didn’t say I didn’t look again. 1 looked again and I seen the train coming. Q. Where were you then? A. T was right onto the switching track or side track.* * * Q. You were south of the side track? A. Yes. Q. And how far were-you then from the main track? A. Oh, twenty or thirty feet — twenty-five feet or thirty feet. Q. And at the time you looked at the point forty-five feet south of the main track — and you are sure that is forty-five feet? You have measured it since? A. Yes, we measured it. Q. How fast was your automobile beirig driven ? A. I don’t remember of slowing — I remember when I got close to the track — I don’t remember slowing down until — Q. How fast were you going? A. About fifteen or twenty miles an hour. Q. At that point you were going fifteen or twenty miles an hour, and didn’t see any train or anything, so I assume when you went on the passing track you were going fifteen or twenty miles an hour ? A. I could not say for sure, but I think that is the speed I was going.”
In describing the collision he says he saw the front end of the engine pass, “what they call the cowcatcher, probably about fifteen feet of the engine, ten to fifteen feet.” 'Witnesses Krieps and Anderson think his ear had stopped before the collision, but, in any event, it seems clear that the front of his car- and what is referred to in the briefs as the “rock arm or cylinder head” at.
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Smith, J.
One question only is presented on this appeal: Was there sufficient evidence of plaintiff’s freedom from contributory negligence to warrant submission of that issue to the jury ? Plaintiff had thé burden of proof, but on tbe motion to direct verdict be was entitled to have the evidence bearing on that issue viewed in tbe light most favorable to himself. It becomes necessary to set out the substance of tbe record with that in mind.
Defendants are trustees of the property of the Chicago, Milwaukee, St. Paul & Pacific Bailroad Company. One of its
lines runs east and west through the village of Sexton, in, Kossuth county. The collision in question occurred about noon on June 8, 1942, at a street or highway crossing in said village. Plaintiff, then twenty years old, was driving his automobile north toward the crossing on a graveled road or street. His car was equipped with four-wheel brakes and newly purchased tires, all in good condition.
Defendants’ freight train approached the crossing from the east. It was a clear day. The windows of plaintiff’s car were down. He was a stranger to the vicinity but had driven south over the same crossing about an hour earlier the same day.
He testified he knew he was approaching the railroad track and that “they run a lot of passenger and freight trains on the track, some of which run pretty fast and some not so fast. ’ ’ He says he was listening for a train as he proceeded into the railroad right of way. He heard no whistle and no bell. Two witnesses, Mrs. Joseph Krieps and Wallace Anderson, who were at a point in the highway in front of the Krieps house 275 to 300 feet south of the crossing testified quite positively that no signals were sounded. Other witnesses were equally positive that the statutory signals were given.
Plaintiff and the two witnesses referred to fix the speed of his car , as he passed these witnesses and approached the crossing at fifteen to twenty miles per hour. Before reaching the Krieps house he had been going thirty-five to forty. The view to the west (on his left) was open and unobstructed; to the east there were obstructions:
‘ ‘ I knew that was the dangerous side, so I never paid much attention to the left-hand side.”
Two tracks of the railroad cross the highway at this point. The northerly one was the main track,' the southerly one a passing track. The south rail of the main track and the north rail of the south or passing track were 11% feet apart. The distance between rails on each track is 4 feet 8 inches. '
The collision occurred on the main track, which, according to plaintiff’s own testimony, is 45 feet from the south edge of the right of way. On the east side of the road, just south of the crossing, is the Weaver place, bounded on the north by the right
of way, with wire fence between. One witness says the level of the ground of the Weaver lot is 4 to 5 feet higher than the level of the highway. Another says it is some higher.
Trees and bushes and the house on the Weaver lot obstruct the view to the east of one on the highway approaching the crossing from the south until he reaches the edge of the railroad right of way. A large cottonwood tree near the north edge of that lot overhangs the right of way “four or five or six feet.” The witnesses also enumerate weeds in the right of way as obstructions but it clearly appears they were not high enough to interfere with the view of an approaching train. Right at the corner of the Weaver lot is a telephone pole and there are high-line poles running east along the railroad right of way. Both highway and railroad are level at the crossing and in each direction so far as material to this inquiry.
Plaintiff’s own testimony (corroborated by' the testimony of witnesses on his behalf) is to the effect that at a point 45 feet south of the railroad track (at the edge of the right of way) he could see 75 to 100 feet down the track to the east, that the cottonwood tree and the poles and bushes prevented his seeing farther in that direction. That was the last point at which he looked except just as the train was upon him:
“Q. At thirty-five feet how far could you see down the track? A. I don’t know. I was not looking — I was not looking at thirty-five feet down the track, or forty feet either. Q. The only point you want to tell this jury you looked was at the corner of the Weaver fence and the right-of-way where your view to the east was obstructed so you could only see seventy-five to one hundred feet down the track? Ts that correct? A. Yes, around in there. I could not give exact measurements because T don’t know about that. Q. That is the only place you looked to the east? A. Yes. Q. To discover an approaching train? A. The second time I looked the train was coming down the track. Q. That was" too late then? A. T didn’t get stopped then. Q. After you passed the point of forty-five feet, or the right-of-.way fence and the Weaver lot, as a matter of fact the view substantially increased so you could see any distance down the railroad tracks to the east? A. Oh, I think you have to get
right up to the tracks before you can get a clear view down to the east. I was down there since the accident and I purposely looked for that.”
Mrs. Krieps estimates (without having measured) that up to a point 25 feet south of the main-line track the view to the east was
completely
obstructed. Anderson says
“you
would have to be about twenty-five or thirty feet from the main track” before you would have an unobstructed view down the railroad.
Plaintiff, as we have said, testifies that he approached the south edge of the right of way at fifteen or twenty miles per hour. It is difficult at this point to summarize his testimony. After testifying that he looked at the point 45 feet south of the main track his testimony is as follows:
“Q. And you didn’t look again? A. I didn’t say I didn’t look again. 1 looked again and I seen the train coming. Q. Where were you then? A. T was right onto the switching track or side track.* * * Q. You were south of the side track? A. Yes. Q. And how far were-you then from the main track? A. Oh, twenty or thirty feet — twenty-five feet or thirty feet. Q. And at the time you looked at the point forty-five feet south of the main track — and you are sure that is forty-five feet? You have measured it since? A. Yes, we measured it. Q. How fast was your automobile beirig driven ? A. I don’t remember of slowing — I remember when I got close to the track — I don’t remember slowing down until — Q. How fast were you going? A. About fifteen or twenty miles an hour. Q. At that point you were going fifteen or twenty miles an hour, and didn’t see any train or anything, so I assume when you went on the passing track you were going fifteen or twenty miles an hour ? A. I could not say for sure, but I think that is the speed I was going.”
In describing the collision he says he saw the front end of the engine pass, “what they call the cowcatcher, probably about fifteen feet of the engine, ten to fifteen feet.” 'Witnesses Krieps and Anderson think his ear had stopped before the collision, but, in any event, it seems clear that the front of his car- and what is referred to in the briefs as the “rock arm or cylinder head” at. the side of the engine came in contact with each other.
Plaintiff does not think he was on the passing track yet when he applied his brakes:
“Q. Well, in any event, Mr. Scherer, you were going too fast to stop yonr car, no matter where it was, when you first discovered this train approaching? A. I didn’t get it stopped in time. Q. You were going too fast to stop it; you did all you could to stop it? A. That is right. Q. You were just going too fast? A. If 1 was driving slower, I perhaps would have stopped, if I had seen it in time.”
Plaintiff’s witnesses who saw the collision both estimate the speed of the train at fifty miles per hour; one says “approximately forty-five to fifty.” They say when the train came to a stop seventy cars of the train were west of the crossing. Mrs. Krieps thought there were as many or possibly more still to the east. The conductor testified that at the time of the accident the train consisted of an engine and tender, fifty cars, and a caboose.
As plaintiff approached the crossing from the south he passed witnesses Krieps and Anderson on his left. Anderson was sitting in a parked automobile on the west side of the road and Mrs. Krieps was standing by it talking to him. North of the Krieps home some trucks were standing and beyond them a Model-A Ford was coming out of a lane on the west side of the highway and south of the railroad right of way. The Ford slowed up and allowed him to pass and he paid no further attention to it.
According to plaintiff’s testimony, after looking to the right as he came upon the right of way and seeing no train coming from the east, he glanced to the left, then straight ahead, and saw a man on the other side of the track, 200 or 300 feet ahead, “waving at him and motioning with his arms: ' Q. Did you look at him for any appreciable length of time? A. I just looked, and then I looked quick to the right.”
Tt was then he saw the approaching train “about fifty feet down the track” and his car was then “maybe twenty feet from the track, twenty or twenty-five from the main track * * * almost up to the passing track.” He was still going fifteen to twenty miles per hour.
I. This, in substance, is the record which appellant contends should have been submitted to the jury. Does it make a prima facie case on the issue of freedom from contributory negligence ¶
The trial court sustained appellees’ motion to direct on two of the grounds urged: “2. That the evidence establishes that the plaintiff was guilty of contributory negligence.* * *” and “3. That upon the entire record, in the event this case is submitted to the jury and the jury returns a verdict in favor of the plaintiff, it would be the duty of the Court to set the verdict aside upon the insufficiency of the evidence.”
It is not necessary to pass on the merits of the first of these grounds, for the burden was not upon appellees to establish that appellant was guilty of contributory negligence. We are concerned only with the sufficiency of the evidence of appellant’s
freedom
from contributory negligence.
There is a fundamental difference between these two methods of approach to this question. We have not always been careful to maintain this distinction but it is important to be kept in mind.
II. The difficulty in cases of this kind is not so much in stating the principles involved as in applying them to the facts testified to by the witnesses. We have examined all the cited cases but are not disposed to discuss or distinguish the many relied on by appellant, nor to cite all those which, in varying degrees, are pertinent as supporting our conclusions. Being convinced from a careful consideration pf the record that the trial court acted properly in directing verdict for appellees, we shall state as briefly as may be our reasons.
The language of the opinion in Artz v. Chicago, R. I.
&
P. R. Co., 34 Iowa 153, 161, has been much quoted to the proposition that if there are obstructions to the view the question of freedom from contributory negligence is always one for the jury. Carefully read, the actual holding of that case is probably not so broad. The court had already decided that the case should be reversed and the language referred to was not strictly necessary to its determination. Since that time there have been many decisions which qualify the language in the Artz case if it is to be so broadly construed.
In Glessner v. Waterloo, C. F. & N. R. Co., 216 Iowa 850, 853, 249 N. W. 138, 139, we said:
“The action of the trial court in sustaining the motion was undoubtedly correct. The law does not undertake to direct whether a traveler upon the highway shall first look to the right or to the left before crossing tracks, or to fix the place where observation shall be made. It does réquire that the traveler shall look at a place where he can see,
and that he shall then he in a situation to avoid injury by the operation of. cars upon the tracks.”
(Italics supplied.)
Appellant’s whole argument here is based upon the proposition that, “As the plaintiff drove the last several hundred feet before reaching the right-of-way, he could not see the track as it extended east from the crossing by reason of the various obstructions.” In appellant’s brief and argument it is said:
“Although some of defendant’s witnesses testified that there was an occasional place where you could get a flash view through the trees, all of defendant’s witnesses and the plaintiff’s witnesses agreed that there was a constant obstruction for a person driving along in an automobile and that it was impossible to see to the right, from a point several hundred feet south up to the right-of-way.”
The testimony of plaintiff is clear that he Dinderstood this situation, although he had never been over the crossing until he crossed it earlier that day. We are compelled to conclude from his own testimony and the testimony of his witnesses that he approached the crossing knowing his view to the east was obstructed. When he came about to the.edge of the right of way, 45 feet from the crossing, he says' he could see only 75 to 100 feet down the track to the east. He must have known that as he went farther north the view to the east would lengthen. He must also have known that if a train was coming from the east from a point farther than 75 to 100 feet it might be coming at a rate of speed such as to make it impossible for btm to cross ahead of it. His own testimony is that when he came to a point approximately at the edge of the right of way and 45 feet from the main track he was traveling fifteen to twenty
miles per hour. He continued at that speed until he was only 25 or 30 feet from the track and saw the train about 50 feet away. He says, in effect, that he does not remember of slowing down until then. There is no evidence of any diverting circumstances or deceptive appearances excusing him from the duty of looking at a place where he could see
and from having his car under control so as to be able to stop if he then discovered the approach of a train.
There was placed upon him an affirmative duty to exercise care under the known circumstances and there was an affirmative burden placed upon him in this case to produce evidence that he exercised such cgre.
Appellant does not claim that the motions of the man on the other side of the track diverted his attention. That such claim could not be made see Ballard v. Chicago, R. I. & P. R. Co., 193 Iowa 672, 185 N. W. 993.
In Darden v. Chicago & N. W. R. Co., 213 Iowa 583, 586, 239 N. W. 531, 533, after pointing out that if plaintiff had stopped her car 25 feet back from the crossing she could have seen 360 feet to the south; at 20 feet back, she could have seen 510 feet; and at 15 feet, 954 feet, we said:
‘ ‘ The duty is placed on the driver of an automobile to look and listen for trains, and it was one of plaintiff’s duties to look, at the place where, by looking, she could have seen * * Citing Hinken v. Iowa Cent. R. Co., 97 Iowa 603, 66 N. W. 882; McFarland v. Illinois Cent. R. Co., 193 Iowa 776, 187 N. W. 947; High v. Waterloo, C. F. & N. Ry. Co., 195 Iowa 304, 190 N. W. 331; Nederhiser v. Chicago, R. I. & P. R. Co., 202 Iowa 285, 208 N. W. 856; and Bradley v. Missouri Pac. R. Co., 8 Cir., Ark., 288 F. 484.
In the Hinken case, supra, we said [97 Iowa 606, 66 N. W. 883] : “If plaintiff had stopped and looked for the train, even after he had crossed the side-track, this sad accident would not have happened. * * * He knew, however, that his view of the track was obstructed for some distance just before reaching-the side-track. This fact, alone, should have made him the more cautious, after he arrived at a place where he had an unobstructed view of the track.”
We affirmed the lower court in directing verdict in this case.
In Reeves v. Dubuque & S. C. R. Co., 92 Iowa 32, 36, 60 N. W. 243, 245, we pointed out that if plaintiff had looked at the point where his view became unobstructed he would have seen the train and could have avoided the accident
“if he had been driving with that degree of care one should exercise when he knows he is near a railroad
crossing(Italics supplied.)
Numerous later cases support the rule that in absence of diverting circumstances or deceptive appearances, a motorist approaching a crossing, who knows his view is obstructed until he is close to the track, must, in the exercise of due care, not only look when he reaches the point where looking is possible but must then have his own vehicle under such reasonable control as to enable him to stop if necessary to avoid collision. See Hitchcock v. Iowa Southern Utilities Co., 233 Iowa 301, 6 N. W. 2d 29; Nurnburg v. Joyce, 232 Iowa 1244, 7 N. W. 2d 786; Carlin v. Thompson, 234 Iowa 469, 12 N. W. 2d 224; Dean v. Chicago, B. & Q. R. Co., 211 Iowa 1347, 229 N. W. 223.
In Bannister v. Illinois Cent. R. Co., 199 Iowa 657, 659, 202 N. W. 766, 767, we upheld the trial court in directing a verdict for defendant, and said:
“It is shown that, when he first looked to the east, his view was obstructed, and he knew it; and that he did not again look to the east until he reached a point where a collision could not be avoided.”
The citations and quotations could be extended much further but the foregoing sets out the law we believe applicable to this case. We are compelled to the conclusion that the trial court properly directed a verdict for defendant. The ease is affirmed. — Affirmed.
Mantz, C. J., and Hale, Miller, and Wennerstrum, JJ., concur.
Bliss, Garfield, Mulroney, and Oliver, JJ., dissent.