Carlin v. Thompson

Smith, J. In view of our disposition of the case, we shall set out and consider, in the light most favorable to plaintiff, only so much of the record as bears on his alleged freedom from contributory negligence. The situation and surroundings, of the crossing where the collision occurred are shown with little conflict in the record. The evidence consists of oral testimony, photographs, and plats. The circumstances of the accident are not complicated. The “Gridley crossing” is some twelve to fourteen miles east of Estherville on paved Highway No. 9, which runs straight east and west. The Chicago & Northwestern Railway Company, of whose property defendant is the trustee, has a branch line which runs northwest and southeast, crossing said highway diagonally at that point. There was no station agent and no depot building at Gridley but there was a regular stop there to take on papers for distribution at points farther south. Passengers, if any, were taken on at the same time. The stopping place was a short distance south of the highway crossing. The collision occurred about 5:30 p. m. on May 14, 1940. The day was cloudy and rainy. A strong wind blew from the south. Plaintiff says: “It was a light rain or a heavy drizzle driven by a pretty strong wind.” Plaintiff, forty-nine years old, driving a Chevrolet coupe, approached the crossing from the east. The windshield wipers were working; his parking lights were on and his hydraulic brakes in good order. The pavement was pretty wet but plaintiff had a set of practically new tires and “wouldn’t say the car skidded.” “Q. You think the wet pavement didn’t contribute to your inability to stop or control your car ? A. Well, no, not altogether. - *471 * * * I would say that it bad a tendency to swerve my car at the first application of tbe brakes.” The side windows of the car had wing vents open approximately two inches on each side. Plaintiff testifies that he was traveling fifty-five to sixty miles an hour when he came past the highway warning sign about 600 feet east of the crossing. He then slowed down to forty-five or fifty miles an hour until he reached a point about opposite the entrance driveway into the Burdette place on the north side of the road. On direct examination he says: “I would say a trifle west of the private entrance into the Burdette farm, I looked up and right there in the highway right of way fence approaching the pavement was this railroad car. I had never seen trains coming from the northwest looking through those cottonwood trees on prior trips.. I would say that at that time I was in the neighborhood of one hundred feet from the railroad tracks. ’ ’ The railroad “train” consisted of a single car, with gas-operated engine with generator and motors. We will still refer to it as a “train.” It came to the crossing from the northwest. Plaintiff testifies: “It was moving I would say at a very low rate of speed and looked like it was going to stop, but, of course, you couldn’t tell where it would stop. Had he intended to stop he could have stopped on a dime.” According to the engineer’s testimony, when the train reached “the northerly line of the highway it was moving at about eighteen to twenty miles per hour. I was slowing down. At the time I reached the pavement I was moving about fifteen miles per hour. ’ ’ Plaintiff’s auto struck the train on its left or east side, well toward the front. The train came tp a stop with its rear end south of the pavement about fifty or seventy feet. There are certain important physical facts, revealed by the photographs and measurements, that are uncontradicted in *472 the record. The center of the traveled portion of the Burdette driveway, on the north side of the highway, referred to in plaintiff’s testimony, is 291 feet from the center of the crossing. It was -just west of that point plaintiff, traveling forty-five to fifty miles per hour, first saw the train as it entered the highway. Just east of the entrance to this driveway there was a row of evergreen trees extending on east along the front of the Bur-dette premises and along the north edge of the highway right of way for a distance of six or eight rods. According to a photograph offered by plaintiff, these trees would obstruct the view to the northwest of anyone coming from the east along the highway. But after such traveler would reach the point opposite the west end of the evergreens at the entrance to the driveway, approximately 300 feet east of the crossing, there was nothing to obstruct the forward view to the northwest up the railway track an indefinite distance, except a bunch of cottonwood trees in the cattle yard west of the driveway. Many details of the landscape elaborated upon in the testimony are, under the undisputed record, entirely immaterial. The buildings on the Burdette premises (except the barn), and the grove of cottonwood, box-elder, and other trees north of the barn and house are all due north of the row of evergreens. The barn is at the north end of the driveway and about 150 feet north of the highway. It is obvious none of these things interfered with plaintiff’s view as he passed the evergreens; and when he emerged from behind the evergreens, still 300 feet from the crossing, all these “obstructions” were far to his right and most of them somewhat back of him. Neither the photographs nor the oral testimony show the cottonwood grove in the cattle yard west of the driveway as a serious obstruction to the view. Plaintiff’s own Avitness, Bur-dette, describes the trees as extending down to the railroad right of way ‘ hit and miss. ’ ’ He says: <<*= * * they are apt t0 t)6 ciose together and they are apt to be quite a ways apart. The trees have large tops and limbs are a long ways above the ground. T would say the limbs are twenty feet above the ground.” *473 One photograph, Exhibit 6, taken under the direction of plaintiff’s own counsel from a point in the highway ten feet east of the Burdette driveway and looking west and northwest, was offered by plaintiff and will be shown as a part of this opinion. It shows quite clearly that the cottonwood trees could not, under plaintiff’s own testimony, have interfered with his view of the train when he reached that point at the west end of the row- of evergreens. All views of the premises were taken from an elevation substantially at the level of the sight of one driving a car. Those taken and offered on behalf of defendant corroborate Exhibit 6: " Plaintiff was a salesman. He was familiar with the crossing. It was on his route and he had driven over it twice a day, two days a week, for practically six months. On this occasion he had with him a young woman passenger whom he had.undertaken to carry from Forest City to her home in Estherville. She testified for plaintiff: *474 “Mr. Carlin made various stops seeing his customers. Mr. Carlin was driving his car, a ’37 Chevrolet Coupé. I was sitting on his right side. I had been working quite hard for a week and ' I was just rather relaxed and -waiting to get home, looking forward to it. We had been riding along. It was rainy and sort of foggy. It wasn’t a very cheerful afternoon. We hadn’t been doing much talking. We were just sitting and looking ahead and Mr. Carlin said ‘Oh, my God, we are going to hit that train, ’ and that was the first thing I knew about it. I did not see a headlight on the train, did not hear any whistle or bell, didn’t hear a thing. I saw the train right at the moment we were struck, not before.” I. The evidence and controversy over the cottonwood grove as an obstruction to the view of one coming along the highway from the east is academic in light of the uncontradicted evidence of the respective locations and rates of speed of the two vehicles. Plaintiff testifies quite definitely as to his speed after he passed the warning sign 600 feet from the crossing. He also corroborates to some extent the testimony of the engineer of the train as to its speed as it approached the crossing. We realize that testimony as to speed always has a degree of vagueness that must be taken into account. But here we have counsel on both sides basing their arguments on the theory that the evidence showed plaintiff’s ear moving about three times as fast as the train was moving as they both approached the crossing. Plaintiff says he saw the train when he reached a point ‘ ‘ a trifle west of the private entrance into the Burdette farm.” He. estimates the point as being ‘ ‘in the neighborhood of 100 feet” from the railroad tracks. He was up to that time still driving ■ forty-five to fifty miles per hour. He says the train was then “in the highway right of way fence,” in other words, just entering the highway at a point which, by actual measurement, was later shown to be 34 feet from the center line of the paved portion of the highway. As a matter of actual measurement also, the center line of the Burdette farm entrance is 291 feet east of the center of the crossing; so if plaintiff first saw the train at a point 100 feet east of the crossing he was already almost 190 feet past the Burdette entrance. If, on the other hand, we dis *475 card his 100-foot estimate and take hjs language, “a trifle west” of the entrance, he was probably much farther, nearly 300 feet, from the crossing. This driveway entrance is important in the record for another reason. Various photographs of the crossing are in evidence, taken from points in the highway east of the crossing. All were taken by the same photographer but some were under the direction of plaintiff’s counsel and some under defendant’s direction. Those for plaintiff were taken about a week after the accident and those for defendant the second day after. There could not have been any material change in the situation in the interim. Exhibit 6 has already been referred to as one of plaintiff’s exhibits. It was taken from a point about 10 feet east of the Burdette entrance, that is, more than 300 feet east of the center of the crossing. Under the undisputed record, when plaintiff passed that point the train was approximately 100 feet from the place of collision. This Burdette entrance is important because just there plaintiff came out from behind the row of evergreens along the front line of the Burdette yard. Up to that point, as he came from the east, his view to the northwest had been cut off by those trees. It was the point where the ordinarily prudent man would be expected to look for danger as he approached a known railroad crossing. Back of it he knew his view was obstructed and that to look would be a futility. Examination of this Exhibit 6 makes it quite conclusive that for the last 300 feet covered by plaintiff before the collision, he must have had a practically unobstructed view of the train. It could not have been much more than 100 feet from the inevitable meeting place of the two vehicles when he reached the west end of the evergreens. By his own testimony, before reaching this 300-foot point, he was traveling “blind” (so far as his view to the northwest was concerned) and at a speed of forty-five to fifty miles per hour. He was no stranger to the crossing. He had approached it from the east fifty times in the preceding six months and as many times from the west. There is no evidence of any attention-diverting circumstance. The windows of *476 his oar were closed except that the wing vents were open on each side about two inches. There was a light rain falling, his two windshield wipers were working, and visibility may not have been too good. Under the circumstances, it cannot be thought that, as a reasonably prudent person, he was relying on his sense of hearing and was misled by the alleged failure of sound warning signals. On no subject is the law itself better settled than on the subject of contributory negligence; but no issue can present a greater variety of facts to which the law must be applied. Other cases are of little value except as they develop the general principles which must be adjusted to meet the infinite variations of fact as they are presented. We commend the industry of counsel on both sides in the citation of eases thought to be controlling, or at least helpful. The case has been argued with exceptional ability and clarity by counsel for both parties, and the trial court displayed commendable fairness and judicial poise in its rulings on evidence. We are not impressed, however, with any classification of rules that suggests a conflict between the so-called “physical facts” and “prudent person” rules in contributory-negligence cases. We conceive that the test at all times and under all circumstances is the conduct of a reasonably prudent person in like situation. Application of that test always required that the physical facts be taken into consideration. It is true that these facts may at times be found controlling as against conflicting oral testimony. But our search must always be for, and our decision based upon, what would have been the conduct of a reasonably prudent person. The instant case is perhaps peculiar in that plaintiff was concededly traveling approximately three times as fast as was the train as both approached the crossing. The train, at any given time closely preceding the collision, was correspondingly nearer to the crossing. The result is to make unimportant the evidence of obstructions to the view of the railroad for long distances to the northwest, evidence that would be immensely significant if the respective rates of speed of the two vehicles were reversed. The result further is to make more important *477 the eases in -which the train reached the place of collision first and was run into by the automobile. It is not necessary to decide -whether the statutory ‘ ‘ assured clear distance” rule applies here. Code, 1939, section 5023.01. It is sufficient to say that the plaintiff, coming from behind known and clearly visible obstructions nearly 300 feet from the crossing, should be held to the rule that an ordinarily prudent person would have his car under such control that if he then discovered danger of collision he would be able to stop in time to avert that danger. The language of the concurring opinion in Dombrenos v. Chicago, R. I. & P. R. Co., 194 Iowa 1161, 1179, 191 N. W. 158, 165, is quoted by plaintiff: “He was not bound to drive at such a rate of speed, when approaching the crossing, or to have his car under such control, as to preclude the possibility of a collision. He could not exercise infallible judgment.” We have no criticism of this pronouncement as applied to the facts of that ease. The distance involved there was negligible and plaintiff was moving eight or ten miles per hour. The train approached at a speed estimated at twenty miles per hour in face of an ordinance limiting to six miles. The difference between that and the instant case is too clear for discussion. In Darden v. Chicago & N. W. R. Co., 213 Iowa 583, 586, 239 N. W. 531, 533, 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, and by listening, she could have heard the same.” (Cases are cited abundantly supporting the text.) Manifestly, the rule stated implies that the purpose of looking and listening is to enable the driver of the ear to stop if he discovers danger of a collision. He does not meet the test if he looks and listens while traveling at a speed that makes looking and listening a futility. In Hitchcock v. Iowa Southern Util. Co., 233 Iowa 301, 311, 6 N. W. 2d 29, 35, we had before us a factual record surprisingly *478 similar to the record here. In that case, as here, the automobile was traveling approximately three times as fast as the train; the driver had, as had plaintiff; here, the benefit of the 600-foot warning signal but failed to reduce his speed to a rate that would enable him to stop after reaching the point where he could discover the approaching train. ¥e said: “He drove into the danger zone, a position of peril, at a speed that made it impossible for him to avoid the collision.” Space does not permit or the occasion justify a discussion or analysis of all the cases cited by plaintiff, though we have examined them all. Suffice it to say we find none of them in conflict with our conclusion here. Nor does it seem necessary to enter into an extended discussion of the cases cited by defendant. In- Hitchcock v. Iowa Southern Utilities Co., just cited, the trial court directed a verdict on the ground that the evidence of plaintiff’s freedom from contributory negligence was not sufficient to go to the jury. We affirmed that decision. In our judgment it is controlling here. In addition to the cases therein cited, see Nurnburg v. Joyce, 232 Iowa 1244, 7 N. W. 2d 786; Glessner v. Waterloo, C. F. & N. Ry. Co., 216 Iowa 850, 249 N. W. 138; Beemer v. Chicago, R. I. & P. Ry. Co., 181 Iowa 642, 162 N. W. 43. We have accepted without question plaintiff’s testimony as to speed and as to his efforts to stop his car after discovering that the train was practically in his path. He has, however, offered in evidence a photograph of the resulting wreck of his car. It indicates that he must still have been going at a high rate of speed when he struck the side of the train. It casts doubt upon his testimony either as to the speed at which he was going when he discovered his danger or the distance he then was from the crossing. There seems no escape from the conclusion that the evidence, considered most favorably in plaintiff’s favor, fails to support the verdict. II. Our conclusion announced under Division I makes unnecessary any discussion bearing on the alleged negligence of defendant. The decision of the district court must be and it is reversed *479 and the ease is remanded with direction to enter judgment for defendant. — Reversed and remanded. Mulroney, C. J., and Hale, MilleR, Wennersteum, and Mantz, JJ., concur. Bliss, Gakeield, and Oliver, JJ., dissent.