I dissent from Division I of the majority opinion. The record, as I read it, utterly fails to show any direct or circumstantial evidence of freedom from contributory negligence sufficient to carry that issue to the jury. The burden was on plaintiff to make such affirmative showing. He was aided by no presumption. Our province is not to determine whether he was in fact negligent, but to say whether there is evidence to support a jury finding that he was not negligent. (I will use the term plaintiff to refer to the driver of the car whenever the context so indicates.)
It is well settled that it is not the duty of the court to submit the case to the jury merely because there is some evidence produced by the party having the burden of proof. Such evidence must be "of such character that it would warrant a verdict" in favor of the party introducing it. Bales v. Bales, 164 Iowa 257, 145 N.W. 673. It is also well settled that the record must be viewed in the light most favorable to the one against whom the motion to direct is aimed. With these principles *Page 749 in mind, let us examine the testimony of plaintiff and his witnesses and the photographs offered in his behalf to determine how he attempts to sustain the burden of proof which the law places upon him.
Plaintiff had lived in Hampton, Iowa, seventeen years. For more than five years immediately preceding the accident he had lived only a block or two east of the crossing where it happened and on the same street. He left home the morning of the accident about eight o'clock, central standard time. It was a "clear, calm, early winter morning," November 26, 1941. He traveled west, a little uphill all the way from his house to the crossing, and at no time more than ten miles per hour. He says he could stop in 10 feet. Ordinary human experience would probably say his estimate is, at least, conservative. He shifted into high gear at approximately 125 feet east of the tracks and did not thereafter change back into low or intermediate.
A series of photographs was introduced as a part of plaintiff's case. One, taken about 125 feet east of the crossing and looking to the northwest, shows the view quite obstructed by trees, weeds, and buildings. Another, taken at a point 75 feet east of the crossing, shows the obstructions much more serious and nearly completely shutting off the view. At a point about 25 or 30 feet the view is still obstructed, but due apparently to the presence of a parked car hereinafter referred to. The picture taken 15 or 20 feet from the crossing shows an unobstructed view to the north and west for at least 600 feet. Plaintiff's oral evidence tends to lessen, rather than increase, the seriousness of these obstructions.
He testifies:
"I was listening for trains from the time I left the house up until the accident. I had stopped for a good many trains there already. * * * As I came up to the crossing, I looked south first. There wasn't any train coming from that direction. I looked north, and I was about 15 feet off from the track and I seen the train. I think the train was then less than 100 feet away — a little less than 100 feet, somewhere around there. I don't know what I did next — when I seen the train, I was all done. I thought that it was the last. That is all I thought, and *Page 750 I didn't think any more after that. I know I turned my car to the south a little bit. The rear end of my car was struck by the train on the right side."
On cross-examination he says:
"The engine of my car was not making any particular amount of noise, and I was driving at a low speed in high gear. There was nothing about the automobile that would prevent me from hearing any sounds. There were no other vehicles on the road, and there were no people around the crossing or in the vicinity that I saw. The road was a good graveled roadway. There were no ruts or chuck holes on the roadway itself. There wasn't anything about the road that required any particular attention in driving a car any more than on any other graveled roadway. There wasn't anything that distracted my attention that I can now recall."
Plaintiff claims there was an automobile parked, extending straight east and west, and located across and 10 to 20 feet from the sidewalk on the north side of the street and east of the tracks about 20 or 25 feet. He thinks that obstructed his view to the north when he was about 30 feet from the track.
One of plaintiff's witnesses saw the accident through the window of a house on the other side of the track and on the north side of the street. She says:
"The first thing I noticed was the sizzling noise like when the brakes on a train are applied, and then I looked out the east dining room window. When I looked out, I could just see the train coming past my garage, I would say right in front of the railroad tool house. * * * Shortly after that, I observed an automobile coming up the hill, going west. When I first noticed the car, I would say it was about where the driveway turns up on the west side of the Windelow house [approximately 125 feet east of the crossing]. I know the car was coming up that little hill there. * * * That car didn't stop at any time. It didn't change its direction."
It is to be borne in mind that plaintiff was admittedly acquainted with this crossing. He "had stopped for a good many *Page 751 trains there already." He says he had "crossed it a good many times," though he also testifies:
"I was well acquainted with the neighborhood there. I had driven over the crossing where the accident happened, but I tell you it wasn't very often that I went there, because I usually went south up to No. 10 and went west from there."
That morning, as he came past the obstructions, which continued more or less up to a point 15 or 20 feet east of the crossing, he must have been fully aware of them and must have known, if he was thinking, that he would have to make his observation when he came to the point where the view was open; and he must have known it would be useless to do so with his car in motion to such a degree as to make it impossible for him then to stop if a train was discovered approaching.
It is suggested that plaintiff had a right to rely upon compliance by defendant with the city speed-regulating ordinance. There is no testimony, however, that he did rely on it, and there is no evidence that the train was violating it.
The majority opinion says: "Plaintiff's testimony is that he looked north the last time as soon as his view in that direction was unobstructed." Again: "There is substantial evidence that plaintiff looked both south and north as soon as his view in either direction was unobstructed." Both references are to his testimony of observations made by him approximately 15 feet from the tracks. It is manifest that looking at that point could be of no value if he was unable, because of the motion of his car, to stop. He did not shift gears or slow down as he approached the crossing, and he testifies to no facts which in any way explain his failure to pause, and stop, if necessary, in order to ascertain if he could safely cross. He was partly across before he was hit, as the evidence shows that it was the rear right side of his car that was struck by the train.
In argument some point is made of the fact that the train was several hours late. There is no evidence that he was in any way misled by that circumstance. There is no evidence as to the speed of the train, certainly none to indicate that it was traveling at a high rate of speed, or that plaintiff was caught by reason of any unexpected speed of the train. Plaintiff's own witness says *Page 752 the train was slowing down for the station, which is just south of the crossing on the east side of the tracks.
The foregoing fairly summarizes plaintiff's evidence bearing on the issue of freedom from contributory negligence. It also fairly presents his theory of the case, which is that his view of the railroad to the north (from which direction came the train that struck him) was obstructed until he was too close to avoid the collision. What was his duty, in these circumstances, as a reasonably prudent person?
The answer is found in our own decisions, repeated over and over, both in cases where plaintiff prevailed and those in which we held he had not sustained the burden. It is reduced to a succinct and accurate statement by the Corpus Juris text writer:
"Where the view or hearing of a traveler approaching a railroad crossing is so obstructed that he cannot otherwise satisfy himself whether it is prudent to cross, it is his duty, where he is familiar with the crossing or aware of such facts, to stop and look or listen before going upon the tracks * * *." 52 C.J. 309, section 1884, citing Dean v. Chicago, B. Q.R. Co., 211 Iowa 1347, 229 N.W. 223; High v. Waterloo, C.F. N. Ry. Co., 195 Iowa 304, 190 N.W. 331; Wilson v. Illinois Cent. Ry. Co., 150 Iowa 33, 129 N.W. 340, 34 L.R.A., N.S., 687; Moore v. Chicago, St. P. K.C. Ry. Co., 102 Iowa 595, 71 N.W. 569; Nosler v. Chicago, B. Q. Ry. Co., 73 Iowa 268, 34 N.W. 850; besides many decisions from other states.
Because the majority opinion ignores this thoroughly sound and well-established doctrine, let us quote from some of our own decisions.
In Payne v. Chicago N.W. Ry. Co., 108 Iowa 188, 195, 78 N.W. 813, 816, we said:
"Under repeated and undisputed holdings of this court, it was the duty of the plaintiff to look and listen for trains before going on the crossing, and if, from any cause, he could not know, by looking or listening, while moving forward, whether or not a train was coming, he should have stopped until, by looking or listening, he did know that it was safe for him to cross." *Page 753
There was no dissent.
In Darden v. Chicago N.W.R. Co., 213 Iowa 583, 585, 586, 239 N.W. 531, 532, it is said:
"The undisputed testimony in the case shows that, if she had stopped her car 25 feet back from the crossing, she would have had a clear and unobstructed view for 360 feet to the south; if she had stopped 20 feet back, she would have a clear and unobstructed view for 510 feet; if she stopped 15 feet back, she would have a clear and unobstructed view for 760 feet; and if she had stopped 10 feet back, she would have a clear and unobstructed view to the south for 954 feet. * * * The duty is placed on the driver of an automobile to look and listen for trains * * * at the place where, by looking, she could have seen, and by listening, she could have heard the same."
See, also, the cases cited. The opinion was unanimous.
In Dean v. Chicago, B. Q.R. Co., supra, 211 Iowa 1347, 1350, 229 N.W. 223, 224, we said:
"Stopping or starting an automobile in perfect working condition, with good brakes, going at a low rate of speed (which facts are all shown in the instant case), is a simple movement, requiring very little time or energy."
In that case the view was obstructed until the traveler was within "a few feet of the track." The opinion says, in conclusion:
"The fact is, however, that he did not stop, and * * * that, had he looked to the west all of the time while approaching the tracks, he could not have seen anything until his car was on, or nearly on, the tracks. Plaintiff must have known, under the circumstances, that, if he did not stop, and a train was approaching, which he could not see and could not hear, a collision would be inevitable."
Six judges concurred in the opinion and there was no dissent.
Quotations and citations could be multiplied. They are all to the effect that while there is no mandatory rule requiring the traveler to stop in all cases, he must do so if under known *Page 754 conditions he cannot make the necessary observations for his own safety while continuing in motion toward the crossing.
There was no mechanical or physical reason shown why plaintiff here could not and should not have exercised the care instinctively practiced by every prudent pedestrian who starts to cross a busy thoroughfare before he enters the danger zone. The rule clearly applies to drivers of motor vehicles approaching railroad crossings:
"* * * where ordinary caution and prudence require it, as where the physical conditions are such as to make it necessary before he can safely cross the tracks, or where it is necessary to enable him to look and listen effectively * * * [the motorcar driver's] failure to stop before going on the crossing will constitute contributory negligence." 52 C.J. 310, 311.
See, also, Barnett v. Atchison, T. S.F. Ry. Co., 99 Cal. App. 310,278 P. 443.
The doctrine is frequently invoked in cases where the known obstructions are farther back away from the crossing, leaving a greater distance and a longer time within which to do whatever may be necessary to avoid collision if an oncoming train be discovered. In such cases it is sometimes rather a matter of reducing speed than of actually stopping to look and listen. The principle is the same.
"The law does not undertake to direct whether a traveler upon the highway shall first look to the right or to the left before crossing tracks, or to fix the place where observation shall be made. It does require that the traveler shall look at a place where he can see, and that he shall then be in a situation toavoid injury by the operation of cars upon the tracks." Glessner v. Waterloo, C.F. N. Ry. Co., 216 Iowa 850, 853, 249 N.W. 138, 139. (Italics supplied.)
See, also, Hitchcock v. Iowa Southern Util. Co., 233 Iowa 301,6 N.W.2d 29; Nurnburg v. Joyce, 232 Iowa 1244, 7 N.W.2d 786; Beemer v. Chicago, R.I. P. Ry. Co., 181 Iowa 642, 162 N.W. 43; Carlin v. Thompson, 234 Iowa 469, 12 N.W.2d 224.
There are cases where plaintiff, confronted by an unexpecteddanger, might be entitled to a "thinking distance" in *Page 755 which to collect his faculties enough to think about stopping his car. Luse v. Nickoley, 231 Iowa 259, 264, 3 N.W.2d 503, 505. This is not such a case. Plaintiff was entering a zone of known danger from behind known obstructions. Under his own evidence and theory he had, up to that point, been unable to see up the track to the north. The very purpose of looking then was to see if a train was coming in order to avoid being hit. He should not be heard to plead surprise or emergency because a train was in fact approaching.
The majority opinion cites numerous cases. Six are recommended for special attention. In the cases of Nederhiser v. Chicago, R.I. P. Ry. Co., 202 Iowa 285, 208 N.W. 856, Hines v. Chicago, M. St. P. Ry. Co., 196 Iowa 109, 194 N.W. 188, and Lutz v. Davis, 195 Iowa 1049, 192 N.W. 15, there were diverting circumstances sufficient to make them jury cases. In Barrett v. Chicago, M. St. P. Ry. Co., 190 Iowa 509, 175 N.W. 950, 180 N.W. 670, plaintiff's decedent was a guest. Both he and the driver of the car in which he was riding were killed. This court held an instruction proper on the instinct of self-preservation. It was pointed out also that defendant's train was exceeding the speed limit and that it was for the jury to say whether both decedents might have thought they could cross in safety ahead of it.
It is difficult to see how the question of contributory negligence could have been involved in the case of Davitt v. Chicago G.W. Ry. Co., 164 Iowa 216, 145 N.W. 483. Plaintiff's ward, "a little boy," was riding with one driving a team. Whatever discussion there is of contributory negligence relates to the conduct of the driver. Facts are recited as sufficient to make a jury question that are entirely absent in the instant case. In Selensky v. Chicago G.W. Ry. Co., 120 Iowa 113, 116, 94 N.W. 272, 273, the testimony of plaintiff presented an entirely different question from the one presented here. Some quotations from the opinion may be helpful:
"But it is not, as matter of law, negligent in one approaching a highway crossing to fail to stop, unless there arecircumstances which would indicate that stopping was essential inascertaining whether there was danger." (Italics supplied.) *Page 756 Again: "But on the other hand, if the plaintiff knew the view to be obstructed, it would be her duty to look out for an approaching train by exercising reasonable care, in view of the obstruction; and, under such circumstances, it might be necessary to show that she stopped for the purpose of looking and listening." (Italics supplied.)
These six cases, especially relied upon by the majority, merely illustrate the truth of what is said in one of them:
"* * * it also often happens * * * that a comparatively slight difference in the facts of any particular case may distinguish it from another case." Lutz v. Davis, supra, 195 Iowa 1049, 1054, 192 N.W. 15, 17.
There is no showing or claim here that plaintiff was deceived or tricked by appearance into a false sense of security; and no showing that his attention was diverted from the exercise of the care required of one who enters a zone of danger. His was the burden and not defendant's. I think a verdict should have been directed for his failure of proof on the issue of contributory negligence.
HALE, MILLER, and MANTZ, JJ., join in this dissent.