# Strom v. Des Moines & Central Iowa Railway Co. > Supreme Court of Iowa · May 7, 1957 · 248 Iowa 1052 URL: https://www.frixlaw.com/law-library/cases/9520207 ## Case - **Full name:** Mildred L. Strom, Appellant, v. Des Moines and Central Iowa Railway Company, Appellee - **Court:** Supreme Court of Iowa - **Decided:** May 7, 1957 - **Citations:** 248 Iowa 1052; 82 N.W.2d 781; 1957 Iowa Sup. LEXIS 481 - **Precedential status:** Published - **Opinion:** Dissent by Peterson - **Judges:** Garfield, Bliss, Oliver, Wennerstrum, Thompson, Larson, Peterson, Smith, Hays - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9520207 ## Opinion text Peterson, J.- I respectfully dissent. I approve Division III of the majority opinion which holds the doctrine of last clear chance is not effective under the facts of this case. I approve the provision in the majority opinion in Division II, which provides that charges (2) and (4) as to negligence on the part of defendant shall not be submitted to the jury when the case is tried again. I concede the matter of submission to the jury of charges (1) and (3), although I have serious doubts concerning both of them. As to charge (1), on the question of the blowing of the whistle, there are sis witnesses testifying the whistle was blown; true, four of them were railroad men on the train. The only evidence to the contrary is the evidence of plaintiff as follows: “Q. Did you hear anything in the nature of a whistle or a bell? A. No.” As to charge (3), concerning flagman or maintenance of signal, I question gravely as a jury question the obligation of a railroad company to maintain this service in a small business suburb, and on a road which is not one of the main highways across the state. However, in view of the many eases in which we have held it is our duty to consider the evidence in the light most favorable to plaintiff, I concede that as to these two charges there is basis for submission to the jury. Kinney v. Larsen and Sterlane v. Fleming, both supra. (Both cited in majority opinion.) However, in my opinion, we do not reach Division II on the question of negligence of defendant. The question of *1073 whether or not contributory negligence1, so ably discussed in Division I of the majority opinion, is for the jury or the court, is decisive of the case. A brief description of the triangle area involved in the facts of this case is of value in connection with analyzing plaintiff’s actions in connection with the collision. The highway known as Merle Hay Road runs north and south through the small suburban business district known as Johnston. Proceeding north this becomes highway 141. In the northerly part of the Johnston area one of the principal highways of the state, No. 64, turns away from the Merle Hay Road to the northwest. North of this junction point, and between the two highways, is a small triangle area. Defendant-railroad runs parallel to and about 60 feet west of highway 64 for more than 1000 feet north of the triangle. About 60 feet north of the apex of the triangle defendant railroad runs across highway 141. It is on this railroad crossing, in the right-hand lane of highway 141 that the collision occurred. On highway 64 southwest of the railroad and about 85 feet west of the crossing in question appears a small one-story building known as Tiny’s Café and some other small buildings. To the north of the railroad and facing highway 141 is a lumberyard, which displays a neon sign, the lighted part of which is 30 or 35 feet above the ground. In the area between Tiny’s Café and the west side of highway 141 is a small area across which runs a gravel road, between the two main highways, and a small parking area with room for a few cars. I differ with the majority opinion as to one vital and important matter. That is the distance between the point of collision at the crossing, and the point at which plaintiff could have had a clear view of the bright headlight of the engine if she had looked. This point was when she emerged after at least five cars ahead of her had turned to the northwest on highway 64. The majority opinion assumes this was 60 feet. Neither the photographic evidence nor oral testimony sustains this distance. The question of presence of contributory negligence as a matter of law or as a jury question depends on this fact. The majority recognizes this in stating: “If plaintiff is to be 'held contributorily negligent as a matter of law it would seem to be due' to *1074 her conduct during this brief interval of time and space.” (According to the majority opinion, 60 feet.) There are two matters in the evidence which show the distance involved was much farther than 60 feet. In fact, the evidence indicates a distance of from 150 to 175 feet. The first factor involves close scrutiny of the photograph, Exhibit 1, a copy of which appears in the majority opinion, and Exhibits 2 and 5, shown in the record. At least five cars preceding plaintiff turned to the left and into highway 64 at a substantial distance before reaching the apex of the triangle formed by the junction of highways 64 and 141. As a matter of practical knowledge it would be preposterous to assume the cars in the procession ahead of plaintiff moved up opposite the apex of the triangle and then made an abrupt square turn to the left over to highway 64, with plaintiff emerging at that point. We know as a fact they moved in a gradual circle out of the right-hand lane of highway 141 into the right-hand lane of No. 64. This means they would move away from in front of plaintiff at least 80 or 90 feet south of the apex of the triangle. Added to 60 feet this equals 140 or 150 feet from place of collision to point where plaintiff, if properly alert and looking, could see the bright headlight of the engine. As to the oral testimony concerning the matter, we start with the premise that plaintiff never did testify as to how far it was from the point of collision to the point at which the five cars ahead of her left the right-hand lane of highway 141. There is definite testimony in the case concerning the situation. William A. Parrish, head brakeman on the train, was riding in the cab at the front of the engine with the engineer. He testified: “I would estimate roughly that the engine was something under 50 feet from the crossing to Merle Hay when the car involved in the accident emerged from the lane of traffic.” Since he said “something under” let us be conservative and call it 40 feet. Since the track crosses the road at an angle, it was at least 30 feet from the west edge of the Merle Hay Boad (same as highway 141 -at that point) to the point of collision in right-hand lane. This means the train traveled 70 feet at 10 to 12 miles per hour (we will call it 12 miles) from the point at which Mr. Parrish saw plaintiff *1075 emerge from the lane of traffic to the point of collision. This was 17% feet per second, or 4 seconds. Plaintiff, according to her own testimony, was traveling 30 miles per hour. This is 44 feet per second and on that basis when Mr. Parrish saw her clear the lane of traffic she was 4 seconds in time, or 175 feet in distance, from the point of collision. According to the undisputed evidence of the witness, Clifford O. Swanson, who had made a study of speed stoppage, at 30 miles an hour she could stop in 83 feet. In other words, if she had been alert and watchful when approaching the railroad crossing, she could have stopped at from 30. to 50 feet before arriving at the crossing. If she had simply looked ahead she could have seen the light from the engine headlight. It was a very bright light. The undisputed evidence is that it could spot a man on the track ahead at from 500 to 700 feet. The train had moved 30 or 40 feet away from back of Tiny’s restaurant, which was 85 feet from the crossing. The headlight of the engine was completely in the clear. Exhibit 2 in the record is a photograph taken in the dark of night, about the same hour as time of collision. The picture was taken 142 feet south of the crossing, which is somewhat near plaintiff’s point of emergence from back of the cars. The headlight of the engine shows clearly at 216 feet northwest of the center of the crossing. On night of collision the headlight was only about 70 feet from that point. I will discuss the matter of parked cars later, in connection with diverging circumstances. If witness Parrish could see the dimmed light of plaintiff’s car, by the same token she could have seen the bright headlight of the engine. We logically revert to the question: does this throw us back to the last-clear-chance doctrine? It does not, because without conflict the evidence shows the train of engine and fourteen cars could not stop under 200 feet, running at 12 miles per hour. The majority opinion directs our attention to Koob v. Schmolt and Menke v. Peterschmidt, both supra, which cases discuss the question of predicating negligence on two seconds of time. However, the majority emphasizes 1% and 1% seconds, so I have no hesitation in basing my analysis on a 4-second basis. We have often held that when a traveler approaches a rail *1076 road crossing, diverting circumstances may occur or appear which are of sufficient importance to generate a jury question as to contributory negligence. Kinney v. Larsen and Markle v. Chicago, R. I. & P. Ry. Co., both supra, cited in majority opinion, with other similar cases. However, divergent circumstances must be genuine and real, and must be supported by testimony which justifies their use as a basis for submission to the jury. On the matter of significance of alleged divergent circumstances I disagree with the majority opinion. The majority opinion lists five alleged circumstances: (1) procession of cars ahead of plaintiff; (2) lights of a car coming from the northwest on the west side of highway 64; (3) neon lights on lumberyard sign; (4) parked cars in triangle area; (5) her “feeling” the railroad was obsolete. Plaintiff only mentioned two of these matters in her testimony: lights of the car over on the other road, and she had a “feeling” the track was obsolete. The fundamental meaning of divergence is that it takes your attention away from the main point of observation. In this case that was the railroad crossing and train. The three other alleged circumstances could not be divergent as to plaintiff, if she did not even notice them. However, I will consider the merits of each. (1) The first alleged circumstance was that plaintiff was following at least five ears, which turned to the left into highway 64. Certainly a group of cars ahead of you moving quickly and properly out of your route to the left are not such a reasonable divergent circumstance as to cancel your obligation to look to the road ahead of you. This becomes especially true when you know you are approaching a railroad crossing, as plaintiff did. (2) The second alleged divergent circumstance was the lights of the car coming from the northwest on highway 64. Plaintiff testifies this car was at the junction of the two highways when the five or more cars ahead of her were driving into the east lane of highway 64. Taking into consideration the topography of the area it seems impossible to accept the premise that this light could have affected plaintiff. A close study of the photograph shown in the majority opinion shows that *1077 from the right-hand lane of Merle Hay Road, as it continues north as highway 141, to the left-hand lane of highway 64 would be at least 40 or 50 feet. This is not comparable to a ear coming from the north on highway 141. and directly meeting plaintiff. She states there was no such car. Furthermore, long before plaintiff reached the apex of the. triangle the five cars ahead of her had driven into the right-hand lane in highway 64, and must have hidden any lights of approaching cars on said highway. (3) Another divergent circumstance described in the majority opinion is the neon lights 30 or 35 feet in height above the ground at the lumberyard on the north side of the railroad track. The only time she refers to the lumberyard is under cross-examination where apparently she was questioned on the existence of a lumberyard at the railroad track and the necessity for the use of the track by reason thereof. She said she thought the lumberyard was served with trucks. The presence of these lights is established in the evidence through the photograph taken at night. The neon lights are 30 feet in height above the ground; not sufficiently fixed in the mind of plaintiff so that she would mention them in her testimony; not sufficiently close to the ground to neutralize the effect of the bright engine headlight. (4) Another circumstance mentioned in the majority opinion is the matter of parked cars and some low advertising signs between the railroad track and the apex of the triangle. They were not close to the apex because that area was a gravel roadway. There could be no other obstruction because Tiny’s Café is 85 feet west of the crossing on highway 141. The evidence as to the presence of cars is very unsatisfactory and very sketchy. A deputy sheriff described the area. A part of his statement is shown in the majority opinion. His full statement was: “Both Exhibit H and Exhibit I, to the best of my knowledge, are fairly accurate representations of the area as it appeared May 6, 1955.” We do not have the benefit of copies of Exhibits H and I in the record. Prior to this statement he was describing the details of the area in general. It is significant he makes no specific reference to parked cars in the above statement. However, this is not too material, because undisputable *1078 physical facts nullify diversion. The bright headlight of the engine was far above the tops of the parked cars and the low signs. This appears clearly in Exhibit 2, of which a copy is shown in the record. The fact also appears in the testimony of Mr. Shivers, the registered engineer, when he said: “There is a parking lot between Tiny’s Food Shop and the railroad and the highway. If there were cars in that they would not obstruct your vision of the top of a locomotive. It would obstruct at ground level.” (Emphasis ours.) (5) The other diverting matter to which the majority opinion gives considerable attention is the fact that plaintiff testified on cross-examination she thought the crossing was obsolete. Her testimony was as follows: “As far as I was concerned, that was an obsolete track. I have never seen a train on it and I had been up there lots of time's and the condition of it gives you that feeling that it is obsolete.” In the first place is it fair to accept a “feeling” held by plaintiff, in the face of uncontradicted facts in the record to the contrary ? While it is true this was not a busy track, yet the testimony shows one train ran north and came back each day for six days a week so there was a train on this crossing at least two times each weekday. We do not seem to have considered abandoned tracks, but the question has been under consideration in other states. Some jurisdictions have held it may be taken into consideration by the jury in connection with plaintiff’s contributory negligence. However, it seems the weight of authority and certainly the more reasonable position is in accordance with Gallagher v. Montpelier & Wells River Railroad, 100 Vt. 299, 303 , 137 A. 207, 209 , 52 A. L. R. 744, 748. The court said: “It is a matter of common knowledge that some railroads are not used so much as others, and that all roadbeds do not receive like attention; but a traveler has no right to assume that a railroad has been abandoned simply because he never saw a train running over it, or its roadbed is not kept in the most approved condition * * * so long as a railroad track is maintained across a public highway that, of itself, is notice to the world that trains are likely to be run thereon.” *1079 I am of the opinion that after having crossed this railroad crossing three times on the day on which the accident happened, and as she testified crossed it many times before, plaintiff is not entitled to have the question carried to the jury on this point. Railway-crossing cases have been numerous in our judicial history. Generally speaking it is fundamental that when a traveler approaches a railroad crossing he has an obligation to be alert and watchful as to possible approach of trains. In a unanimous decision of this court, in an opinion written by Justice Faville, we analyzed the general railroad-crossing situation. The case is Lutz v. Davis, 195 Iowa 1049, 1052 , 192 N.W. 15 , 17, where we said: “The general rules of law regarding the duty of one about to cross a railway crossing, in order to be free from contributory negligence, are not intricate nor obscure. All courts agree that due care requires that a traveler, under such circumstances, must use his senses of sight and hearing, before attempting to cross a railway track, and in order to be free from contributory negligence, must look and listen for an approaching train. A failure so to do constitutes negligence on his part, as a matter of law. Now, if such plaintiff fails to prove that he did look and listen, then, applying the established rules of law, the court must hold that, as ‘a matter of law/ the plaintiff has failed in an essential legal requisite of his proof, and cannot recover.” This is still the law in Iowa. In Darden v. Chicago & N. W. Ry. 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 * * (Citing five cases.) We have considered many cases where obstructions appear at certain points. This causes the responsibility of the traveler, as to watchfulness and care, to be increased. On. this question in Scherer v. Scandrett, 235 Iowa 229, 236, 237 , 16 N.W.2d 329 , 333, we stated: “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 sidetrack, this sad accident would not have happened. * * * He knew, however, that his view of the track was obstructed for some distance just be *1080 fore reaching the sidetrack. 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.1 ” We also said in the same ease: “In Reeves v. Dubuque & S. C. Ry. 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.)” I would affirm. Smith and Hays, JJ., join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9520207. Public record. Not legal advice.