# Wittrup v. Chicago & Northwestern Ry. Co.

> Supreme Court of Iowa · March 19, 1975 · 226 N.W.2d 822

URL: https://www.frixlaw.com/law-library/cases/9737940

## Case

- **Full name:** Carl WITTRUP, Appellant, v. CHICAGO AND NORTHWESTERN RAILWAY COMPANY, Appellee
- **Court:** Supreme Court of Iowa
- **Decided:** March 19, 1975
- **Citations:** 226 N.W.2d 822; 1975 Iowa Sup. LEXIS 958
- **Precedential status:** Published
- **Opinion:** Dissent by Rees
- **Judges:** Reynoldson, Mason, Rawlings, Uhlenhopp, Harris, McCormick, Rees, Moore, Legrand
- **Cited by:** 10 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/9737940

## Opinion text

REES, Justice
(dissenting).
The majority remands this case for new trial, holding the railroad’s alleged negligence in failing to post signs warning of low clearance under its overpass and plaintiff’s driver’s alleged contributory negligence in misjudging the clearance beneath that overpass were issues which should have been submitted to the jury. I cannot agree, and would hold trial court correctly decided both those issues as a matter of law in favor of defendant.
I. The traditional formula for the elements necessary to a cause of action founded upon negligence contemplates proof defendant was under an antecedent duty to conform to a certain standard of conduct, i. e., to use care, for the protection of others against unreasonable risks. See Prosser, Law of Torts, 4th Ed. § 30, p. 143, et seq.; 2 Harper and James, The Law of Torts, § 18.-1, p. 1015. Ordinarily, the question whether a duty exists is “entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.” Prosser, supra, § 37, p. 206. See also Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972), 57 Am.Jur.2d, Negligence, § 34, p. 381.
In the instant case trial court decided the duty question presented here adversely to plaintiff, holding there is no duty under Iowa law requiring railroads to warn motorists of low clearance between railroad overpasses and the highways they span. The majority concludes the duty question was so bound up with the ultimate question of defendant’s negligence that it should have been left for the jury. Relying on the foregoing authority, I believe the duty question was for the court alone, and if it interpreted the Iowa law accurately in finding no duty existed this court should affirm.
The majority concedes defendant was under no statutory duty to post signs advising motorists of low clearance beneath railroad overpasses but apparently goes on to hold that a jury applying logic, sound reasoning and enlightened public policy might none *828 theless find such a duty existed even though it was not statutorily imposed. While I would be persuaded by that line of reasoning in the ordinary case, I cannot reconcile it here in the face of § 321.259, The Code. That statute provides:
“No person shall place, maintain, or display upon or in view of any highway any sign, signal, marking, or device which purports to be or is an imitation of or resembles an official parking sign, curb or other marking, traffic-control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any official traffic-control device or any railroad sign or signal, if such sign, signal, marking, or device has not been authorized by the state highway commission with reference to highways under their jurisdiction, local authorities with reference to streets and highways under their jurisdiction, and the Iowa state commerce commission with reference to railroad crossings, and no person shall place or maintain nor shall any public authority permit upon any highway any traffic sign or signal bearing thereon any commercial advertising. This shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information of a type that cannot be mistaken for official signs.
“Every such prohibited sign, signal or marking is hereby declared to be a public nuisance and the authority having jurisdiction over the highway is hereby empowered to remove the same or cause it to be removed without notice.” (emphasis added)
It seems obvious to me that had defendant posted a warning sign on or near the overpass in question here, it would have acted in violation of the foregoing statute. In my opinion that circumstance, coupled with the fact there is no statutory duty imposed on railroads to post warning signs, amply justified trial court in concluding as a matter of law no such duty existed, and on that ground directing a verdict for defendant.
II. I believe trial court was likewise justified in holding alternatively that plaintiff was contributorily negligent as a matter of law and on that ground directing a verdict for defendant.
The record reveals plaintiff’s driver had an unobstructed view of the railroad overpass for a considerable distance down Second Avenue. Though according to his own testimony he had never been on the avenue before, the driver admitted to having increased his speed 15-20 miles per hour as he proceeded toward the bridge and said that he never slowed his vehicle or even considered the possibility he might not clear the overpass until he was under it. The driver implied he would have proceeded in the same fashion had his truck been four feet higher.
A number of other courts dealing with cases involving vehicular-overpass collisions, many on facts far less compelling than those presented here, have found drivers contributorily negligent as a matter of law for failing to judge clearance accurately. See e. g., Echols v. Atlanta B. & Q. RR. Co., 45 Ga.App. 609 , 165 S.E. 484 ; Carr v. Chicago N. W. Ry. Co., 333 Ill.App. 567 , 77 N.E.2d 857 (1948); Kutsenkow v. Chicago N. W. Ry. Co., 99 Ill.App.2d 265 , 240 N.E.2d 805 (1968); Illin. Cen. RR. Co. v. Farris, 259 F.2d 445 (5th Cir. 1958); Norfolk So. Ry. Co. v. Davis Frozen Foods, 195 F.2d 662 (4th Cir. 1952); Lewie Montgomery Truck Co. v. Southern Pacific Co., 439 S.W.2d 691 (Tex.Civ.App.1969); Barfield v. Southern Ry. Co., 118 Ga. 256 , 45 S.E. 282 (1903). See generally Annot., 67 A.L.R.2d 1364 , 1378-1380. It might be noted in passing that of the cases cited approvingly by the majority for the proposition contributory negligence should not have been decided as a matter of law in the instant case, Bush v. Jenkins involved a situation where plaintiff’s vehicle lacked clearance by but one or two inches and Georgia R. & Banking Co. v. Sewell involved a structurally defective *829 200-foot long underpass which provided adequate clearance at one end but not at the other, the clearance diminishing “impercep-tively” along the way.
In my opinion trial court justifiably directed a verdict for defendant on either or both the grounds a) defendant was under no duty to warn motorists of low clearance beneath its overpass, b) plaintiff’s driver was contributorily negligent as a matter of law.
I would affirm trial court.
MOORE, C. J., joins this dissent.
LeGRAND, J., joins Division II of this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737940. Public record. Not legal advice.