[1] Plaintiffs sought recovery of damages by reason of claimed permanent injuries to Mae Sterlane and her husband, Jack Sterlane, and also for damages to the automobile of the husband, as the result of a highway-crossing collision with one of the defendants' trains. The record discloses that Jack Sterlane has assigned his claim for damages to Mae Sterlane and it is further shown that she has made a partial assignment of her own claim for damages to Charles DeLaChapelle, one of the plaintiffs in this action. The case was submitted to a jury for its consideration, which returned a verdict in favor of the plaintiffs. The defendants' motion for a new trial was overruled and they have appealed.
The collision which resulted in the claimed injuries to the Sterlanes occurred on November 11, 1942, about 4:30 o'clock in the afternoon. This accident happened at a crossing over the railway company's tracks approximately one-half mile west of the town of Homestead. The roadway, the existence of which is in dispute, turns off from U.S. Highway No. 6 and proceeds in a north-and-west direction from the paved highway across the Rock Island right of way and tracks and to a fence and locked gate on the opposite side of the railroad right of way. The highway, at or near the point of the collision, parallels the railroad right of way. The highway and the railroad tracks at the point in question extend in a general easterly and westerly direction.
The roadway which leads from the pavement across the railroad tracks was originally part of the old River to River road. About the year 1920 this road, in the vicinity of the point in question, was changed from the north side of the railroad tracks to the south side. The record shows that on April 17, 1923, the board of supervisors of Iowa county adopted a resolution which provided for the vacation of "the road lying north of The CRIP Railway in Section 4 in Iowa Township." The Amana Society owned all the land adjacent to the right of way on the north side of the railroad in Section 4. It is shown that following *Page 482 the action of the board of supervisors a fence and gate were built on the north side of the railroad right of way, which gate was kept locked during the greater part of the time. It was locked at the time of the collision. It is further shown that after this gate was put in no maintenance work of any kind was performed, either by the State Highway Commission, by the county, or by any other authority upon the roadway extending from the paved highway to the crossing where the accident occurred. The crossing remained in its original location and was apparently maintained by the railway company. There is no record of any official action being taken by any authority to abandon the roadway between the railroad right of way and the paved highway to the south. The distance from the edge of the pavement to the south rail of the railroad tracks as one progressed along the claimed roadway was approximately ninety-five steps.
I. It is the contention of the appellants that the roadway which extended from the north side of the primary highway to the railroad right of way had been abandoned by the public authorities as a highway. This claimed abandonment is of importance because the evidence shows that the engineer on appellants' train that struck the Sterlane car failed to give the customary crossing whistle. When the fireman on appellants' engine involved in the collision observed the close proximity of the automobile to the track he directed the engineer to give an emergency whistle. This whistle was not a regular crossing whistle. There is no question that the highway on the north side of the railroad right of way had been vacated, but, as previously stated, there is no record of official vacation of the highway south of the railroad right of way. The abandonment, if any, must be deduced from the fact of its nonuse. In this respect the evidence shows that the roadway on the south side of the railroad tracks had been used since the roadway north of the railroad right of way was vacated as a means of access to the timberland on the north side of the right of way. The Amana Society had followed a practice of selling hunting and fishing privileges to individuals. The record shows that the roadway was used by these parties in traveling into the timber *Page 483 tract on the north side of the railroad property. This tract of land was also used by picnickers who used the roadway in question. It was also used by parties who drove into the north tract during the winter season for the purpose of hauling out ice and timber. The record also shows that this roadway was not worked and it was at times very rutty. It is further shown that it had never been fenced or in any way closed to travel by anyone.
In connection with the matter of claimed abandonment of this roadway in question we call attention to the statement made in 39 C.J.S. 1065, 1066, section 130, where it is stated:
"It is presumed that a highway, once shown to exist, continues to exist. Abandonment is a fact which must be proved and the burden is on the one who asserts abandonment to prove it by clear and satisfactory evidence."
And, in 39 C.J.S. 1066, 1067, section 131, in commenting on a stub-end road, it is stated:
"The abandonment of a part of a highway, regardless of the proportion it bears to the total length, does not constitute an abandonment of the portion still used, even though that portion is a cul-de-sac."
In 25 Am. Jur. 365, section 47, the following statement is made:
"A highway once in existence is presumed to continue until it ceases to be such owing to abandonment or some other lawful cause, and the burden of showing a discontinuance, vacation, or abandonment is on the party who asserts it."
In the case of McCarl v. Clarke County, 167 Iowa 14, 20, 21,148 N.W. 1015, 1018, this court made the following significant statement in connection with the question of the claimed abandonment of a roadway:
"A road may not be discontinued unless it is vacated, or possibly by abandonment. Abandonment would be a discontinuance in one sense. The question of abandonment of a road involves, not so much the question of time, though after a long time there may arise a presumption. But it involves more the *Page 484 question of intent and acts of the public. Nonuser is not enough, unless coupled with affirmative evidence of a clear determination to abandon. 37 Cyc. 195. Nor will obstructions or encroachments necessarily work an abandonment. 37 Cyc. 199. Nor does the failure to keep the road in repair necessarily work an abandonment. 37 Cyc. 197; Maire v. Kruse, 85 Wis. 302 (55 N.W. 389, 26 L.R.A. 449)."
Further authorities that support our conclusions will be found in Davies v. Huebner, 45 Iowa 574, 576; Clare v. Wogan, 204 Iowa 1021,1024, 1026, 216 N.W. 739; Robinson v. Board of Supervisors,222 Iowa 663, 666, 667, 269 N.W. 921.
We have read the several cases which have been cited us by the appellants bearing upon the question of the abandonment of a roadway. In the cases which they have called to our attention we do not find that the facts are similar to the situation presented in the instant case, and under the rules as previously set forth we are satisfied that the appellants have not proved the abandonment of the highway by such clear and satisfactory evidence as would justify the court in submitting the question of abandonment to the jury. Consequently we have concluded that the court was correct in its instruction that there had not been a vacation or abandonment of the highway and that it was the duty of appellants' train crew to give the statutory warning of the approach of the train. This conclusion is fortified by the fact that the railway company had continued to recognize this crossing as a highway crossing inasmuch as it had maintained the facilities for crossing the track at this point.
[2] II. The appellants allege as a further ground of error that the court, in giving one of its instructions, informed the jury, in part:
"* * * that the presence of weeds or brush or trees along the right-of-way of a railway near a crossing which obscure the view of the track by travelers approaching the crossing, is not in and of itself negligence on the part of the railway company, but the jury may consider such fact along with other matters in determining whether or not defendants were negligent."
The appellants claim that this instruction, construed with the allegations of the petition as set out in the statement of *Page 485 the issues, along with the burden-of-proof instruction, resulted in conflicting statements. It is also contended that a consideration of these instructions together would result in an interpretation that the presence of weeds or other obstructions at a crossing could be the proximate cause of a collision. It is further contended that, when the instructions are so considered, the court was in error in instructing as it did.
We do not feel that the contentions of the appellants can be sustained. Our interpretation of the instructions does not cause us to reach the conclusion that the trial court stated that the presence of the weeds could be the proximate cause of the collision. The instruction heretofore quoted definitely states that the presence of the weeds, brush, or trees along the right of way of the railroad is not in itself negligence on the part of the railway company, but might be considered along with other matters in determining whether the appellants were guilty of negligence.
In the case of Wiese v. Chicago G.W.R. Co., 182 Iowa 508, 514,515, 166 N.W. 66, 68, this statement is made:
"Whether the company was required generally to keep its right of way at such places free from weeds was not involved. That depends on the location. Allowing weeds which ordinarily do not stand higher than grass along the right of way, and do not obstruct the view, might not amount to negligence; but to permit weeds to grow in the right of way at a private crossing to a height of 6 or 8 feet, where these will be likely to obstruct the view of a person approaching such a crossing, and because of such obstruction expose him to the danger of collision with an approaching train, may be regarded as negligent, and, withomission to sound any warning of the train's approach, might befound the proximate cause of a collision and consequent injuries." (Italics supplied.)
It will thus be observed that the trial court in the instant case incorporated in substance the holding in the cited case. In the cases referred to by the appellants, to wit, Anderson v. United States R. Admn., 193 Iowa 1041, 188 N.W. 826; Bruggeman v. Illinois Cent. R. Co., 154 Iowa 596, 134 N.W. 1079, *Page 486 we held that we do not approve of an instruction which definitely states that the placing of a boxcar on the siding could be the proximate cause of a collision. The court in the present case did not instruct that the weeds and obstructions near the railroad track could be the proximate cause of the collision. What the court did state was that the weeds and other obstructions, if any, near the track might be taken into consideration in determining the negligence of the appellants. In so stating the law as applicable to the instant case we hold there was no error.
[3] III. The appellants present as another ground for reversal the contention that the court gave conflicting instructions in connection with the alleged speed of the train. It is contended that the statement of the issues in the early part of the instructions referred to the speed of the train as one of the elements of negligence and that speed was also inferentially referred to in the burden-of-proof instruction. The appellants claim that these instructions, when construed in connection with other instructions, result in conflicting statements, inasmuch as in certain of the later instructions it is stated that the "movement of a train at a high rate of speed is not, in itself, negligence." In this last-referred-to instruction, as well as in others, the jury was instructed that the rate of speed of the train might be taken into consideration in connection with all other matters relating to the circumstances, situation, location, and visibility of the crossing, and lack of signals, in determining whether or not the appellants' train crew was negligent.
It is our conclusion that the instructions as presented by the trial court do not justify the interpretation that the appellants seek to make.
The criticism which the appellants make of the instructions relative to speed is, in substance, the same criticism which they made of the instructions relative to the claimed obstructions and weeds. Our comments as set out in Division II of this opinion relative to the several instructions are somewhat applicable to the situation presented in connection with the criticism of the instructions relative to speed. We do not believe that this criticism can or should be sustained. Our conclusions find support in several Iowa authorities. In the case of Kinyon v. *Page 487 Chicago N.W. Ry. Co., 118 Iowa 349, 359, 92 N.W. 40, 43, 96 Am. St. Rep. 382, this court stated:
"The great purpose to be subserved by railroads is promptness, speed, and dispatch in carrying passengers and freight; and under ordinary circumstances, in the open country, there is no duty resting upon the companies to slacken the pace of their trains at crossings. To hold otherwise, so long, at least, as grade crossings are the rule instead of the exception, would be to neutralize and to a great extent destroy the advantages derived from modern facilities for transportation. But the right thus conceded is not without its attendant obligations, and if by reason of natural or artificial obstructions to the view of the traveler upon the highway, or of the course of the track around curves or through high embankments, the crossing is of peculiar or extraordinary danger, the operation of the railway must be conducted with reference to that fact."
In Hartman v. Chicago G.W. Ry. Co., 132 Iowa 582, 586,110 N.W. 10, 11, we stated:
"As has often been said, no rate of speed in a train moving in the open country is in itself negligence as to a person upon a crossing, but it sometimes happens, when considered with reference to the circumstances of the particular place, that the rate of speed may be an important factor in determining whether due care has been exercised. Kinyon. v. Railroad, 118 Iowa 349. Whether, in view of the location of this particular crossing at the end of a deep cut, the obstructions, if any, to the view of the approaching traveler, the failure to sound signals of warning, and other attendant circumstances, the rate of speed in this instance had any tendency to indicate a want of reasonable care on part of the defendant was a question of fact and not of law."
In the case of Graves v. Chicago, R.I. P.R. Co., 207 Iowa 30,36, 222 N.W. 344, 347, it is stated:
"We have many times held that speed in the open country is not an independent ground of negligence, but that, at places of peculiar or extraordinary danger, it may become a material *Page 488 factor, in connection with other facts and circumstances, in determining whether due care has been exercised. Gray v. Chicago, R.I. P.R. Co., 143 Iowa 268; Artz v. C., R.I. P.R. Co.,44 Iowa 284; Cohoon v. Chicago, B. Q.R. Co., 90 Iowa 169; McKonkey v. C., B. Q.R. Co., 40 Iowa 205; Kinyon v. Chicago N.W.R. Co., 118 Iowa 349; Rutherford v. Iowa Cent. R. Co., 142 Iowa 744; Bruggeman v. Illinois Cent. R. Co., 154 Iowa 596; Hartman v. Chicago G.W.R. Co., 132 Iowa 582."
By reason of the authorities quoted it is our conclusion that there was no error in the instructions to which criticism has been directed.
[4] IV. The appellants particularly contend that the court committed error in its failure to direct a verdict for them at the conclusion of the appellees' evidence, and again at the conclusion of all the testimony, it being urged that the evidence failed to show that the occupants of the automobile were free from contributory negligence and that their negligence was affirmatively shown. It is axiomatic that in considering a motion for a directed verdict the evidence must be construed most favorably to the party against whom the motion is directed. We have also held that where the facts are in dispute we are not justified in approving a directed verdict. Particularly is this true in this case, in the light of certain portions of testimony.
Roy Gaddis, one of the witnesses for the appellees, testified:
"On that day there was a lot of weeds on the south side of the railroad tracks. I would say these weeds were from 6 to 10 feet from the shoulder on the south side of the track. I could not see over the weeds from my position in the car as I approached the tracks there. They were just simply too high. The weeds were the worst on the right-hand side, going in. * * * Q. How close would you say you would have to get to the south rail of the track before you could see around those weeds? A. Well, my car was clear on the track before I could see."
This witness further testified:
"I would say there was small trees within 8 or 10 feet of the railroad track. Those trees within 8 or 10 feet of the railroad *Page 489 track would probably be 4 or 5 feet tall, brush you might call it. I think the weeds and brush along the lane-roadway began about 30 feet north of the paved roadway."
He further testified:
"I would say trees start between 10 feet of the railroad track and run back, roughly, I don't know. I know there are some straggling trees probably some 15 or 20 feet back a ways."
The witness Adolph Halgren, a state highway patrolman, testified, in part, as follows:
"In my best judgment, I would say that the weeds and undergrowth that I described were about 20 feet or thereabouts from the railroad track. As to the distance a person traveling on that lane that leads to the railroad crossing could see the railroad track, I didn't measure it. Q. What would be your best judgment on that? A. When the road turns to an angle headed west approximately 30 feet, probably."
He further testified:
"I think the weeds and undergrowth came within about 20 feet of the railroad, approximately."
He also stated:
"I don't believe that there was any weeds 7 feet high that were within 20 feet of the railroad track. * * * These weeds tapered off as you got up closer to the railroad, and there may have been some scattering weeds in the last 50 feet or so that were higher than the rail in front of the jury box — maybe just one sticking up now and then."
Adolph Berger, who was one of the witnesses for the appellees, testified, in part, as follows:
"That particular day I observed that there was vegetation there, which obscured the view of the railroad track."
William Lipman, a further witness for the appellees, testified:
"I would say that weeds and brush extended to within *Page 490 about 15 to 25 feet of the railroad track on the easterly side of this roadway. * * * I would say that you could not see the railroad track to the north and east until you got within a distance of 15 to 25 feet of the track."
Jack Sterlane testified:
"It would be my best judgment that the weeds and brush came up to probably 7 or 8 feet from the south side of the south rail. They would obstruct your view as you approached the railroad track, coming from the pavement, while driving an automobile."
He further testified:
"When you start up this little incline, veering to the west, you had a reasonable view to the west at about 30 or 35 feet. When I got to a point where I could look east, I did look to the east. I saw nothing there in my range of vision."
This witness also testified:
"The last 60 to 80 feet of that approach along the lane-roadway leading to the crossing is upgrade, but the principal incline is probably 30 or 40 feet from the track."
He also testified:
"As I drove up there toward the crossing, when I looked to the east I think that the driver's seat of my automobile would be about 30 or 35 feet from the track. * * * When I got up there at the time I looked I could see to the east in the neighborhood of 100, perhaps 200 feet. * * * When I was from 30 to 35 feet from the crossing, I claim that I looked to the east along the track as far as I could see. The distance of from 100 to 200 feet was approximately as far as I could see."
Mae Sterlane testified:
"I would say that you would have to get the length of two automobiles from the railroad track before you could see around these weeds and brush east along the tracks. I should say automobiles are maybe 12 to 15 feet long." *Page 491
It is true that there was evidence presented by the appellants which very definitely contradicted the statements of the witnesses who testified on behalf of the appellees. The photographs of the scene of the accident, which were taken three days following, do not disclose the obstructed view of which certain witnesses for the appellees have testified. However, it is not the province of this appellate court to pass upon the disputed questions of fact, and under the circumstances as presented by the record, particularly in light of the fact that no crossing signal was given, it is our conclusion that we would not be justified in saying that it was error for the trial court to overrule the motions for a directed verdict. Appellants have cited a number of our cases wherein a directed verdict was affirmed, but, as has often been said, each case must stand upon the facts as therein presented. We therefore hold that there was no error in the trial court's submitting the fact questions to the jury.
V. There are other contentions on the part of the appellants regarding instructions and the refusal to give a requested instruction but we do not believe that under the record in this case they present reversible error.
Upon a review of the entire record, as well as the contentions of the appellants, we have concluded that the case was properly submitted to the jury and that there was no error in the record that would justify a reversal. We therefore affirm. — Affirmed.
OLIVER, BLISS, GARFIELD, and MULRONEY, JJ., concur.
SMITH, J., concurs in result.
MANTZ, HALE, and MILLER, JJ., dissent from Division I.