Strom v. Des Moines & Central Iowa Railway Co.

Supreme Court of Iowa

Strom v. Des Moines & Central Iowa Railway Co.

82 N.W.2d 781, 248 Iowa 1052, 1957 Iowa Sup. LEXIS 481

CourtSupreme Court of Iowa

DecidedMay 7, 1957

Docket49130

StatusPublished

Cited by37 cases

This text of 82 N.W.2d 781 (Strom v. Des Moines & Central Iowa Railway Co.) 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

Strom v. Des Moines & Central Iowa Railway Co., 82 N.W.2d 781, 248 Iowa 1052, 1957 Iowa Sup. LEXIS 481 (iowa 1957).

Pincite

Opinions

Garfield, J.

This is a law action to recover for serious personal injuries sustained by plaintiff, Mrs. Strom, age 36, in a collision between the 1948 Ford automobile she was driving and a freight train of defendant. There was a jury verdict for [1056]*1056plaintiff for $16,000.. Upon return of the verdict the trial court on his own motion entered judgment for defendant, based on plaintiff’s contributory negligence, notwithstanding the verdict.

Upon this appeal by plaintiff the contention most vigorously urged is that the issue of freedom from contributory negligence was one of fact for the jury, not of law for the court. This is so, it is said, because the view of the railroad was obstructed and there were diverting or complicating circumstances calculated to deceive or throw a motorist off his guard.

Of course it is our duty to consider the evidence in the light most favorable to plaintiff. Kinney v. Larsen, 239 Iowa 494, 496, 31 N.W.2d 635, 636; Sterlane v. Fleming, 236 Iowa 480, 488, 18 N.W.2d 159, 164.

The collision occurred about 11:30 p.m., May 6, 1955, at a crossing by defendant’s track of state highway 141 (Merle Hay Road) in the village of Johnston, northwest of Des Moines. The highway there runs north and south, the railroad northwest and southeast. The angle northwest of the crossing between the highway and the track appears to be about 25 degrees. Plaintiff was alone driving north. The train was going southeast. The forward end of the Diesel locomotive struck the Ford at the crossing and carried it about 250 feet southeast before it came to a stop.

For about 1150 feet northwest from the crossing the track runs parallel to, and about 60 feet on the northeasterly side of, state highway 64. The highway on which plaintiff drove north is marked both 141 and 64 up to a point about 60 feet south of the railroad crossing, where 64 turns northwest and 141 continues straight on. Plaintiff approached this point, at about 25 to 30 miles per hour, behind about five other automobiles, rather close together, which turned northwest on 64. No cars were coming from the north on 141, but automobiles were traveling southeast on 64 toward its junction with 141. The headlights of one of these were on the high beam and this car reached the highway junction about as plaintiff left it to continue north on 141.

Plaintiff testifies that as she approached the point where 64 left 141 her attention was directed toward the traffic of other automobiles, those ahead of her and those coming from the [1057]*1057northwest on 64; she was looking toward the tracks when she left the highway junction; she looked to be sure there were no ears coming from the north; the ear windows on the driver's side were open; her headlights were on low beam; she heard no whistle or bell; her hearing was good; she does not know what happened at the railroad crossing except the train hit her; she did not see or hear it before the collision but did see the headlight just before the collision.

There is a small café 10 to 12 feet high on the railroad right of way southwest of the track. ’ A deputy sheriff says it is 55 to 60 feet west of the crossing. A civil engineer called by defendant measured 85 feet between the café and the pavement on 141 at the crossing. About this same distance northwest of the café is another one-story building on the right of way. There is a sign between the two buildings. The train ran on the northeast side of these buildings. Along the northeast side of highway 64 is a row of light poles fairly close together. There is space to park automobiles between the café and the crossing, southwest of the track. The deputy sheriff testifies photographs which show four motor vehicles parked in this space “are fairly accurate representations of the area as it appeared May 6, 1955.” In this same space are two small round soft-drink signs, each at the top of a post.

Between the railroad crossing and the junction of 64 and 141, on the west side of 141, is a gravel short cut between the two highways for southbound traffic on 141 about to turn northwest on 64 and southeast-bound traffic on 64 about to turn north on 141. In the triangle formed by this short cut, 141 and 64, is a stop sign about five feet high. Just west of highway 141, northeast of the railroad, is a large neon lighted sign, 30 to 35 feet high, of a lumber company. At the top center of the sign is a revolving light that flashes on and off.

Plaintiff was familiar with the crossing. She had driven over it twice the afternoon of that day and again a few minutes before the collision. She testifies, however, “As far as I was concerned that was an obsolete track. I’ve never seen a train on it and I’d been up there lots of times and the condition of it gives you "'the feeling it is obsolete.” A witness who lived about [1058]*1058three blocks from the crossing for nine months just before the collision says she crossed the track often and never saw a train there. A crossbar sign bearing the words “Railroad Crossing” was in place along 141 both north and south of the crossing. The south sign needed paint. There was also a railroad sign some distance south of the south crossbars.

Actually defendant ran one freight train each way every 24 hours except Sunday. On rare occasions it ran an extra. The trains usually operated at night. There were no passenger trains. The trains ran between Des Moines and Granger or Perry, northwest of Granger. There were 14 cars on the train in question.

We will later refer to some other evidence. The accompanying photograph, somewhat reduced in size from an exhibit offered by defendant, may help visualize the surroundings at the crossing in daylight.

I. Under the peculiar facts of this case we think the issue of plaintiff’s freedom from contributory negligence was one of fact for the jury, not of law for the court.

As plaintiff approached the point where highway 64 turns northwest off Merle Hay Road it was natural and reasonable that her attention was mainly directed toward the motor-vehicle traffic. Five automobiles (defendant’s engineer says five to seven) turned left on 64 just ahead of plaintiff at this highway junction. She was sufficiently alert to be aware of the movement of these cars.

At least one automobile on 64 approached plaintiff at an angle of only 25 degrees from straight north. Its lights were on high beam and naturally interfered with her vision. It reached the junction just as plaintiff was leaving it. While these five or more cars were making left turns just ahead of her they not only occupied her attention but obstructed her view, at least in part, to the north and northwest. It cannot fairly be skid plaintiff was eontributorily negligent as a matter of law prior to the time she left the highway junction.

As soon as these automobiles completed their léft turns and plaintiff had an unobstructed view to the north it was reasonable for her to look for traffic on 141 from that direction. The

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