Strom v. Des Moines & Central Iowa Railway Co. , 248 Iowa 1052 ( 1957 )

Garfield, J.

This is a law action to recover for serious personal injuries sustained by plaintiff, Mrs. Strom, age 36, in a collision between the 1948 Ford automobile she was driving and a freight train of defendant. There was a jury verdict for plaintiff for $16,000.. Upon return of the verdict the trial court on his own motion entered judgment for defendant, based on plaintiff’s contributory negligence, notwithstanding the verdict.

Upon this appeal by plaintiff the contention most vigorously urged is that the issue of freedom from contributory negligence was one of fact for the jury, not of law for the court. This is so, it is said, because the view of the railroad was obstructed and there were diverting or complicating circumstances calculated to deceive or throw a motorist off his guard.

Of course it is our duty to consider the evidence in the light most favorable to plaintiff. Kinney v. Larsen, 239 Iowa 494, 496, 31 N.W.2d 635, 636; Sterlane v. Fleming, 236 Iowa 480, 488, 18 N.W.2d 159, 164.

The collision occurred about 11:30 p.m., May 6, 1955, at a crossing by defendant’s track of state highway 141 (Merle Hay Road) in the village of Johnston, northwest of Des Moines. The highway there runs north and south, the railroad northwest and southeast. The angle northwest of the crossing between the highway and the track appears to be about 25 degrees. Plaintiff was alone driving north. The train was going southeast. The forward end of the Diesel locomotive struck the Ford at the crossing and carried it about 250 feet southeast before it came to a stop.

For about 1150 feet northwest from the crossing the track runs parallel to, and about 60 feet on the northeasterly side of, state highway 64. The highway on which plaintiff drove north is marked both 141 and 64 up to a point about 60 feet south of the railroad crossing, where 64 turns northwest and 141 continues straight on. Plaintiff approached this point, at about 25 to 30 miles per hour, behind about five other automobiles, rather close together, which turned northwest on 64. No cars were coming from the north on 141, but automobiles were traveling southeast on 64 toward its junction with 141. The headlights of one of these were on the high beam and this car reached the highway junction about as plaintiff left it to continue north on 141.

Plaintiff testifies that as she approached the point where 64 left 141 her attention was directed toward the traffic of other automobiles, those ahead of her and those coming from the northwest on 64; she was looking toward the tracks when she left the highway junction; she looked to be sure there were no ears coming from the north; the ear windows on the driver's side were open; her headlights were on low beam; she heard no whistle or bell; her hearing was good; she does not know what happened at the railroad crossing except the train hit her; she did not see or hear it before the collision but did see the headlight just before the collision.

There is a small café 10 to 12 feet high on the railroad right of way southwest of the track. ’ A deputy sheriff says it is 55 to 60 feet west of the crossing. A civil engineer called by defendant measured 85 feet between the café and the pavement on 141 at the crossing. About this same distance northwest of the café is another one-story building on the right of way. There is a sign between the two buildings. The train ran on the northeast side of these buildings. Along the northeast side of highway 64 is a row of light poles fairly close together. There is space to park automobiles between the café and the crossing, southwest of the track. The deputy sheriff testifies photographs which show four motor vehicles parked in this space “are fairly accurate representations of the area as it appeared May 6, 1955.” In this same space are two small round soft-drink signs, each at the top of a post.

Between the railroad crossing and the junction of 64 and 141, on the west side of 141, is a gravel short cut between the two highways for southbound traffic on 141 about to turn northwest on 64 and southeast-bound traffic on 64 about to turn north on 141. In the triangle formed by this short cut, 141 and 64, is a stop sign about five feet high. Just west of highway 141, northeast of the railroad, is a large neon lighted sign, 30 to 35 feet high, of a lumber company. At the top center of the sign is a revolving light that flashes on and off.

Plaintiff was familiar with the crossing. She had driven over it twice the afternoon of that day and again a few minutes before the collision. She testifies, however, “As far as I was concerned that was an obsolete track. I’ve never seen a train on it and I’d been up there lots of times and the condition of it gives you "'the feeling it is obsolete.” A witness who lived about three blocks from the crossing for nine months just before the collision says she crossed the track often and never saw a train there. A crossbar sign bearing the words “Railroad Crossing” was in place along 141 both north and south of the crossing. The south sign needed paint. There was also a railroad sign some distance south of the south crossbars.

Actually defendant ran one freight train each way every 24 hours except Sunday. On rare occasions it ran an extra. The trains usually operated at night. There were no passenger trains. The trains ran between Des Moines and Granger or Perry, northwest of Granger. There were 14 cars on the train in question.

We will later refer to some other evidence. The accompanying photograph, somewhat reduced in size from an exhibit offered by defendant, may help visualize the surroundings at the crossing in daylight.

I. Under the peculiar facts of this case we think the issue of plaintiff’s freedom from contributory negligence was one of fact for the jury, not of law for the court.

As plaintiff approached the point where highway 64 turns northwest off Merle Hay Road it was natural and reasonable that her attention was mainly directed toward the motor-vehicle traffic. Five automobiles (defendant’s engineer says five to seven) turned left on 64 just ahead of plaintiff at this highway junction. She was sufficiently alert to be aware of the movement of these cars.

At least one automobile on 64 approached plaintiff at an angle of only 25 degrees from straight north. Its lights were on high beam and naturally interfered with her vision. It reached the junction just as plaintiff was leaving it. While these five or more cars were making left turns just ahead of her they not only occupied her attention but obstructed her view, at least in part, to the north and northwest. It cannot fairly be skid plaintiff was eontributorily negligent as a matter of law prior to the time she left the highway junction.

As soon as these automobiles completed their léft turns and plaintiff had an unobstructed view to the north it was reasonable for her to look for traffic on 141 from that direction. The

danger to her was very much greater from motor vehicles than from a single train approaching from the northwest at an unscheduled time during the 24 hours. Deputy Sheriff: Peterson, a former state highway patrolman, who patrolled this area, testifies that even between 11:30 and 2:00 at night traffic at this point was heavy to moderate.

After making sure there were no cars approaching from the north plaintiff! says she looked toward the railroad tracks, she saw no train, her hearing was good, she heard no whistle, bell or other audible warning of the train’s approach. The surroundings were not such it may be said as a matter of law she must have seen the train if she looked. There were other obstructions to her view and other diverting circumstances.

■The jury could properly find the brilliantly lighted lumber sign just northwest of the crossing was a diverting circumstance. As stated, a revolving light at the top of the sign flashed on and off, obviously to attract attention of passing motorists. Further, the bright lights of this large sign materially lessened the warning effect of the headlight on the locomotive.

Traveling at 25 miles per hour plaintiff covered the 60 feet between the highway junction and the railroad crossing in less than 1% seconds. If she was going 30 miles per hour she traveled the distance in less than iy2 seconds. (Defendant’s head brakeman in effect agrees with plaintiff’s estimate of her speed. This was a 35 miles per hour zone.) Part of this time was reasonably taken up with looking for motor-vehicle traffic. If plaintiff is to be held eontributorily negligent as a matter of law it would seem to be due to her conduct during this brief interval of time and space.

We have at least twice approved the statement, “ ‘To predicate negligence on two seconds of time is in and of itself a monumental refinement.’ ” Koob v. Schmolt, 241 Iowa 1294, 1299, 45 N.W.2d 216, 218; Menke v. Peterschmidt, 246 Iowa 722, 733, 69 N.W.2d 65, 72. In resistance to plaintiff’s contention the last-clear-chance doctrine is applicable (considered in Division III hereof) defendant argues in effect, we think with reason, it did not have time to be negligent after plaintiff left the highway junction.

Certainly plaintiff is not to be held to a higher standard of care than defendant. In fact Pappas v. Evans, 242 Iowa 804, 814, 815, 48 N.W.2d 298, 304, 305, states:

“Contributory negligence of a plaintiff is not to be measured by the degree of care defendant owes him. Tate v. Canary Cottage, 302 Ky. 313, 194 S.W.2d 663, 665.

“We must not confuse plaintiff’s duty of looking out for his own safety with the duty owed by the railroad company to avoid injury to travelers on the highway at railroad crossings. Were the company being sued by Evans (defendant here) for damages suffered by him there would be involved a higher degree of care on the part of the railroad men on the motorcar because of the responsibility resting on the company to safeguard the public. But we are concerned here with the care plaintiff owed to himself.”

In the Pappas case, Evans was the motorist as plaintiff is here. Lauman v. Dearmin, 246 Iowa 697, 703, 69 N.W.2d 49, 53, cites Pappas v. Evans for the proposition that freedom from contributory negligence “is not to be measured by the degree of care a defendant owes him [plaintiff].” See also Brewer v. Johnson, 247 Iowa 483, 486, 72 N.W.2d 556, 558.

However this may be, we repeat, plaintiff is surely not chargeable with a higher degree of care than is required of defendant. If, as defendant argues and we hold in Division III, there was not sufficient time after plaintiff left the highway junction to permit a jury finding that defendant by the exercise of ordinary care could have avoided the collision, it would seem there was insufficient time during such interval for plaintiff to be contributorily negligent as a matter of law.

See at this point Butterfield v. Chicago, R. I. & P. Ry. Co., 193 Iowa 323, 327, 328, 185 N.W. 151, 153, where without looking plaintiff traveled 40 to 70 feet in not to exceed three or four seconds. We said, “* * * it would be a very drastic holding to say that a driver * * * is to be conclusively chargeable with negligence because for an instant his eye was not exploring the distance for an unheralded danger.”

There are other matters properly to be considered on the issue of freedom from contributory negligence. Plaintiff’s belief the railroad crossing was abandoned, brought out on defendant’s cross-examination of her, if the belief was reasonable, is entitled to consideration. Testimony of the lady who lived near the crossing and traversed it often that she had never seen a train on it as well as the fact it was used only once in 24 hours by a train in each direction, six nights a week, tends to show plaintiff’s belief was reasonable.

Under our repeated decisions plaintiff was entitled to assume that if the crossing was not abandoned the railroad would exercise ordinary care and comply with requirements of law in warning her of the approach of a train. She was not compelled to anticipate negligence of the railroad. Saeugling v. Scandrett, 230 Iowa 153, 156, 296 N.W. 787, 788; Anderson v. United States R. Admn., 203 Iowa 715, 717, 211 N.W. 872; Nederhiser v. Chicago, R. I. & P. R. Co., 202 Iowa 285, 290, 291, 208 N.W. 856; Barrett v. Chicago, M. & St. P. Ry. Co., 190 Iowa 509, 515, 175 N.W. 950, 180 N.W. 670; Butterfield v. Chicago, R. I. & P. Ry. Co., supra, 193 Iowa 323, 328, 185 N.W. 151, and citations. See also Sterlane v. Fleming, 236 Iowa 480, 491, 18 N.W.2d 159, 165; 75 C. J. S., Railroads, section 791.

Of course failure to signal approach of the train did not relieve plaintiff from exercising ordinary care for her own safety but testimony tending to show signals were not given is, under the decisions just cited and many others, properly to be considered on the issue of freedom from contributory negligence.

Many of our railroad-crossing cases point out in substance that precedents are of little value because the facts control and they differ. Sterlane v. Fleming, supra, 236 Iowa 480, 489, 18 N.W.2d 159, 165; Tegtmeyer v. Byram, 204 Iowa 1169, 1175, 216 N.W. 613; Hines v. Chicago, M. & St. P. R. Co., 196 Iowa 109, 115, 194 N.W. 188; Lutz v. Davis, 195 Iowa 1049, 1054, 192 N.W. 15; Waring v. Dubuque Electric Co., 192 Iowa 508, 513, 185 N.W. 130.

Our decisions contain numerous pronouncements like this from Leinen v. Boettger, 241 Iowa 910, 926, 44 N.W.2d 73, 82: “* * * the issue of freedom from contributory negligence * * * is usually one of fact and not of law and is peculiarly and ordinarily for the determination of the jury, and that it is only in the rare and exceptional case and where the lack of reasonable care is so manifest, flagrant, palpable that reasonable minds may fairly reach no other conclusion, that the question is one of law for the court. It is ordinary care, and not the highest degree of care, that is required. [Citations.]”

Among the citations given for the above quotation are Kinney v. Larsen, supra, 239 Iowa 494, 498, 31 N.W.2d 635, 637, and Markle v. Chicago, R. I. & P. Ry. Co., 219 Iowa 301, 308, 257 N.W. 771, both railroad-crossing cases. Similar language is found in Thompson v. Waterloo, C. F. & N. R. Co., 243 Iowa 73, 78, 79, 50 N.W.2d 363, 366, and Hines v. Chicago, M. & St. P. R. Co., supra, 196 Iowa 109, 116, 194 N.W. 188, other railroad-crossing cases. See also Miller v. Griffith, 246 Iowa 476, 479, 66 N.W.2d 505, 507.

Kinney v. Larsen, supra, states (at page 500 of 239 Iowa, page 638 of 31 N.W.2d) that in general we have held, where the traveler’s view of the crossing is obstructed “ ‘so as to render it impossible or difficult to learn of the approach of a train’ ” or there are diverting circumstances which tend to throw the traveler off his guard, the question of freedom from contributory negligence is for the jury. But where the view of the crossing is unobstructed and there are no diverting circumstances a plaintiff, especially one who is familiar with the crossing, is ordinarily denied recovery on the ground of contributory negligence.

Applying this language here the issue of freedom from contributory negligence was for the jury. It is obvious plaintiff’s view of the crossing was obstructed. There were also diverting circumstances which reasonably tended to throw her off her guard — particularly the other cars making left turns just ahead of her, the blinding lights of the automobile approaching from the northwest, and the brilliantly lighted lumber sign with its revolving, flashing light, designed to attract attention. That these were diverting circumstances see Hawkins v. Interurban R. Co., 184 Iowa 232, 241, 168 N.W. 234; Butterfield v. Chicago, R. I. & P. Ry. Co., supra, 193 Iowa 323, 328, 185 N.W. 151; Lutz v. Davis, supra, 195 Iowa 1049, 1055, 192 N.W. 15; Hines v. Chicago, M. & St. P. R. Co., supra, 196 Iowa 109, 115, 194 N.W. 188; Nederhiser v. Chicago, R. I. & P. R. Co., supra, 202 Iowa 285, 290, 208 N.W. 856.

This crossing is not like the ordinary railroad crossing in the open country. It is more like a railroad crossing over a city street. While Johnston is a small community it is very close to Des Moines and well within the suburban area of that city. At this point Merle Hay Road is a continuation of a heavily traveled Des Moines street over which arterial highway traffic moves in and out of Des Moines. This from Marnan v. Chicago, R. I. & P. Ry. Co., 156 Iowa 457, 461, 462, 136 N.W. 884, 885, has application here:

“A collision with a railway train upon a highway crossing on the open prairie, where no watch or guard is kept or can reasonably be expected, and where a person approaching on the highway has an unobstructed view of the track for a long distance, is one thing. A collision upon the street of a crowded city, where speed of trains is regulated by law or ordinance, where gates and flagmen are a reasonably necessary provision for public safety, where the highway is used by hundreds if not thousands of people every day, and where an open view of the track for any considerable distance is not ordinarily obtainable until the traveler is within or very near the zone of danger, is quite another thing. In the former case one can hardly conceive how a person using the highway and being in full possession of his physical and mental powers can be injured by a passing train without the most obvious negligence on his part. In the latter case it is by no means difficult to understand how sometimes a traveler of experience and intelligence may be run down and injured without being conclusively chargeable with want of reasonable care for his own safety.”

Of course we express no opinion on whether plaintiff was free from contributory negligence. We hold merely she was not contributorily negligent as a matter of law and, as in most eases, the issue was one of fact for the jury.

II. Defendant seeks to uphold the trial court’s ruling by arguing no negligence on its part was shown. This was a ground of defendant’s motion to direct verdict and it is entitled to argue it here although the judgment notwithstanding verdict was not placed on this ground. Emmert v. Neiman, 245 Iowa 931, 934, 65 N.W.2d 606, 608, and citations.

Four charges of negligence against defendant were submitted to the jury — failure to: (1) ring a bell, blow a whistle or warn plaintiff of the train’s approach, (2) operate the train at a careful and prudent speed, having regard to the motor-vehicle traffic and other existing conditions, (3) maintain proper warning signs or signals at the crossing under the existing circumstances, and (4) keep a proper lookout.

We find no substantial evidence of this fourth charge and it should not have been submitted to the jury. As pointed out in Division III hereof two of defendant’s trainmen testify in substance they saw plaintiff as soon as the cars ahead of her turned off on 64. There is no evidence to the contrary. Until plaintiff continued north from the highway junction the trainmen had no way of knowing she would not turn onto 64 as the other automobiles did. There was no lack of care shown. in keeping a lookout.

We think too there is insufficient testimony to support the second charge of excessive speed. The engineer says the train was going 10 to 12 miles an hour when the emergency brakes were applied at the west edge of the crossing. Although doubt may be thrown on this evidence by the fact the train traveled some 250 feet or more after these brakes were applied (when four of the 14 cars were empty) we are unable to find substantial support for this charge.

We hold the evidence warranted submission of the first and third charges of negligence. The judgment notwithstanding verdict therefore cannot be upheld on the ground no negligence of defendant was shown although it was error to submit the second and fourth charges of negligence.

As previously indicated, plaintiff testifies she had it on her mind there was a railroad crossing ahead of her, she heard nothing in the nature of a whistle or bell, she never had any hearing difficulties, it has always been good, -her car windows were down on her side, there were no bells ringing there at the crossing that she heard — “I did not receive any warning of any kind before tbe collision that there was a train on the track.” There is no evidence of unusual noise or anything to prevent plaintiff from hearing the signals if they had been given.

Section 478.19, Code, 1954, provides in substance that a whistle shall be twice sharply sounded at least 60 rods before a road crossing is reached and then the bell shall be rung continuously until the crossing is passed. Defendant seems to concede it was required to comply with this statute. Whether it did so was a jury question under this record.

Defendant’s engineer says he gave the usual crossing-whistle before he came to a crossing about 1150 feet northwest of the crossing in question, he turned on the bell just before he came to this north crossing, it ivas still ringing after the train stopped, he sounded the whistle twice for Merle Hay Road — first about at the lumberyard — and “I held the whistle down clear across the crossing. That was after I saw this car coming onto the track.” The lumberyard is very close to the crossing in question. On cross-examination this witness admits he told plaintiff, sometime after the collision, he “blew the whistle because we were going to collide” and that is when he applied the emergency brake- — after he realized they were going to collide.

Defendant’s head brakeman in general corroborates the engineer as to sounding the whistle and ringing- the bell. Tavo other trainmen riding in the caboose say they heard the whistle at the north crossing and again before the crossing in question was reached. One of them testifies in substance the bell cannot be heard in the caboose.

Defendant called two other witnesses who were in the vicinity of the crossing at the time. Both say they heard a whistle. Neither testifies to hearing- a bell. One says the whistle he heard, the sound of applying the brakes and the thud of the collision were pretty close together — “kind of in succession.” The other witness' testifies, “I do not know when the whistle was blown in connection with the accident.” It is clear the jury could properly find the whistle each of these witnesses heard Ayas the one given after the collision was unwoidable and it did not comply with the statute. Of course it is fundamental in any event that the preponderance of the evidence is not determined by the number of witnesses testifying to a given proposition.

Defendant relies upon Lenning v. Des Moines & Central Iowa Railroad, 209 Iowa 890, 894, 227 N.W. 828, 830, and citations, which hold under the particular facts that evidence of witnesses who say they did not hear signals does not create a conflict with positive testimony signals were given in compliance with statute. In the Lenning case the witnesses relied upon to prove failure of signals were conversing as defendant’s car approached and testified (page 894 of 209 Iowa), “they gave no thought to the subject of signals, and the most that they could say was that they had not noticed any.”

We think the facts here are not such that the cited precedents are controlling or applicable under our own decisions or those generally. This subject is exhaustively considered in the annotation to Kindt v. Reading Co., 352 Pa. 419, 43 A.2d 145, 162 A. L. R. 1, commencing page 9. At pages 103 to 107 numerous cases, including several of our own, are cited for this proposition and a related one: “Statements on the witness stand (in some instances corroborated by similar testimony), by persons who were in vehicles as a train approached the crossing and who were shown to have been listening or otherwise attentive, that they did not hear signals frequently have been held to have sufficient probative force to sustain a finding that signals were not given.”

Kindt v. Reading Co., supra, reverses a judgment for defendant, notwithstanding verdict for plaintiff, entered on the ground the testimony was insufficient to raise a conflict with positive evidence signals were given. In some respects the Kindt record was apparently weaker from plaintiff’s standpoint than that here. “The parties were traveling with the windows closed.” Here plaintiff’s windows on her side were open. The occupants of the Kindt automobile did not know the crossing existed. Here plaintiff knew the crossing was there. On this point the court holds (page 423 of 352 Pa., page 147 of 43 A.2d, page 5 of 162 A. L. R.) : “Of course, the fact that these plaintiffs did not know that they were near a railroad crossing tends to support the argument that they were not attentive to signals, but it-does not conclusively establish the fact that their testimony as to the absence of signals was negative.”

The Pennsylvania court also points out (page 426 of 352 Pa., page 149 of 43 A.2d, page 7 of 162 A. L. R.) testimony of some witnesses that they heard no whistle may have more probative value than statements of other witnesses that no whistle was blown. Further, “Judging the credibility of a- witness and the weight of his testimony is pre-eminently a jury’s function.”

75 C. J. S., Railroads, section 859, page 171, states: “If the position and attention of such witnesses were such that they probably would have heard the signals had they been given, their testimony, even that of a single witness, to- the effect that the signals were not given, may be sufficient to establish that fact even where such testimony is opposed by positive testimony that the signals were given.”

Our latest railroad-crossing case to consider a like question is Frideres v. Lowden, 235 Iowa 640, 645, 647, 17 N.W.2d 396, 399, 400. While the facts there are somewhat stronger than they are here on the issue of failure to signal, we think the decision and the precedents there cited support our conclusion here. See also Lee v. Chicago, R. I. & P. Ry. Co., 80 Iowa 172, 45 N.W. 739. The Frideres case is cited with approval on this point in Cunningham v. Court, 248 Iowa 654, 660, 82 N.W.2d 292, 295, 296, which, however, involved a collision between two motor vehicles.

With reference to the third charge of negligence it seems to be well settled in Iowa and many other jurisdictions that a railroad may be required in the exercise of due care to provide some warning signal of the approach of a train other than the whistle and bell required by statute when the crossing is more than ordinarily dangerous and it is essential to the reasonable protection of travelers on the highway. Glanville v. Chicago, R. I. & P. R. Co., 190 Iowa 174, 181, 182, 180 N.W. 152; St. Louis-San Francisco Ry. Co. v. Prince, 145 Okla. 194, 291 P. 973, 71 A. L. R. 357, and annotation 369; Annotation 5 A. L. R.2d 112, 133; 44 Am. Jur., Railroads, section 520; 75 C. J. S., Railroads, section 867b.

Whether in a particular case the crossing is such as to require an additional signal, like gates, flashing lights, bell, gong or other device, is a question for the jury unless reasonable minds could reach only one conclusion thereon from the evidence. See Lindquist v. Des Moines Union Ry. Co., 239 Iowa 356, 370, 371, 30 N.W.2d 120, 127; Bradley v. Interurban R. Co., 191 Iowa 1351, 1356, 183 N.W. 493; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 419-428, 12 S. Ct. 679, 36 L. Ed. 485, 490, 492; Annotation 60 A. L. R. 1096, 1106; also authorities last above.

We are clear the jury could properly find under the evidence here this crossing was more than ordinarily dangerous so defendant should have provided some signal of the approach of its trains other than the signals required by statute. Our conclusion is fully supported by Lindquist v. Des Moines Union Ry. Co., supra, and citations at page 371 of 239 Iowa, page 127 of 30 N.W.2d; Platter v. Minneapolis & St. L. R. Co., 162 Iowa 142, 147, 143 N.W. 992; Koop v. Great Northern Ry. Co., 224 Minn. 286, 28 N.W.2d 687, 694; Carbone v. Boston & Maine R.R., 89 N. H. 12, 15, 192 A. 858, 861.

III. Plaintiff assigns as error the trial court’s refusal to submit to the jury the doctrine of last clear chance. Plaintiff pleaded facts making it applicable. If the evidence warranted submission of this theory it should have been submitted for determination of the jury in the event plaintiff was found guilty of contributory negligence. And this is true although plaintiff also alleged other acts of negligence against defendant together with her freedom from contributory negligence. Crowley v. Burlington, C. R. & N. R. Co., 65 Iowa 658, 664, 20 N.W. 467, 22 N.W. 918; Cahill v. Chicago, M. & St. P. Ry. Co., 143 Iowa 152, 160, 121 N.W. 553; Glover v. Vernon, 226 Iowa 1089, 1100, 285 N.W. 652; Gearhart v. Des Moines Ry. Co., 237 Iowa 213, 220, 21 N.W.2d 569, 573; St. John v. Nichols, 331 Mich. 148, 49 N.W.2d 113, 116; 37 Iowa Law Review 309, et seq.; Annotation 25 A. L. R.2d 254, 281. (The Crowley case is disapproved on a point not here presented in Steele v. Brada, 213 Iowa 708, 712, 239 N.W. 538, 540.)

The doctrine of last clear chance presupposes plaintiff’s contributory negligence. Lauman v. Dearmin, supra, 246 Iowa 697, 703, 704, 69 N.W.2d 49, 53, and citations; Mente v. Peterschmidt, supra, and citations, page 728 of 246 Iowa, page 70 of 69 N.W.2d. It applies where defendant (1) has actual knowledge of plaintiff’s situation, (2) realizes or should in the exercise of reasonable care realize he is in peril, (3) has the ability to avoid injury to plaintiff thereafter and, of course (4) fails to do so. See Menke v. Peterschmidt, supra, 246 Iowa 722, 725, 726, 69 N.W.2d 65, 68, 69, and citations; article by Harry G. Slife, 34 Iowa Law Review 480, 485. See also Restatement, Torts, sections 479, 480.

Defendant’s engineer and head brakeman testify they saw plaintiff’s car as it came north from the highway junction 60 feet south of the railroad crossing. Defendant may not be charged until then with realization of her peril. The trainmen could not sooner know she would not turn northwest on 64 like the ears ahead of her. Plaintiff’s argument in support of the last-clear-chance doctrine is largely based on testimony of the brakeman that nothing indicated to him plaintiff was going to stop and of both these trainmen that the emergency brakes were not applied until the locomotive reached the west edge of. the crossing (i.e., the pavement on 141) and before then the engineer just hoped plaintiff would stop in time. It is not claimed the train could have been stopped before plaintiff reached the crossing, but she says its speed could have been reduced so she could have crossed it safely.

We are agreed this evidence is insufficient basis for application of the last-clear-chance rule. As stated, plaintiff was traveling 25 to 30 miles per hour. She covered the distance between the highway junction and the railroad crossing in less than two seconds, perhaps less than 1% seconds. There was no appreciable time within which the trainmen, even if they realized plaintiff’s peril as soon as possible, could by the exercise of reasonable care stop the train or otherwise avoid the collision. Any finding that defendant could have averted the injury after realization of plaintiff’s peril would, at best, be largely based on conjecture.

What is said in Division I that “To predicate negligence on two seconds of time is * * * a monumental refinement” is appliable at this point. Although Menke v. Peterschmidt, supra, 246 Iowa 722, 733, 69 N.W.2d 65, 72, involved a collision between two motor vehicles at an intersection, it is clear a holding the last-clear-chance doctrine applies here would conflict with the cited decision. There was not time for defendant to be negligent after discovering plaintiff’s predicament. It did not thereafter have the last dear chance to avoid the collision.'

Other authorities support this view. The injured party may not ordinarily invoke the last-clear-chance doctrine where there is a collision between his moving motor vehicle and a train at a crossing. Such a vehicle approaching a railroad does not usually reach a position of danger until it can no longer be stopped or turned aside and there is seldom appreciable time thereafter for the trainmen, in the exercise of ordinary care, to avoid the collision. Johnson v. Sacramento Northern Ry., 54 Cal. App.2d 528, 129 P.2d 503, 505, 506; Rollison v. Wabash R. Co., 252 Mo. 525, 160 S.W. 994; Holmgren v. Union Pac. R. Co., 114 Utah 262, 198 P.2d 459, 463; 75 C. J. S., Railroads, section 814d, page 94. See also Arp v. Illinois Cent. R. Co., 230 Iowa 869, 299 N.W. 413, and citations; Mast v. Illinois Cent. R. Co., D.C. Iowa (Judge Graven), 79 F. Supp. 149, 160, 164; St. Louis, S. W. R. Co. v. Simpson, 286 U. S. 346, 351, 52 S. Ct. 520, 522, 76 L. Ed. 1152, 1155.

We have preferred to dispose of the issue of last clear chance without reference to whether plaintiff’s charge that defendant failed to keep a proper lookout negatives application of the doctrine. See on this Reynolds v. Aller, 226 Iowa 642, 648, 284 N.W. 825, 828.

IV. It follows from Divisions I and II hereof it was error to enter judgment for defendant notwithstanding verdict. We might perhaps order the verdict reinstated with leave to defendant to file motion for new trial. (See Brown v. City of Sioux City, 242 Iowa 1196, 1207, 49 N.W.2d 853, 859; Smith v. Darling & Co., 244 Iowa 133, 145, 56 N.W.2d 47, 53, 54.) Defendant had no occasion to file such a motion in view of the court’s disposition of the ease on his own motion. Since we have held it was error to submit the second and fourth charges of negligence plaintiff should not have judgment on the jury’s verdict and defendant should not be required to move for a new trial in the district court. Accordingly the cause is reversed and remanded for a new trial. — Reversed and remanded.

Bliss, C. J., and Oliver, Wennerstrum, Thompson, and Larson, JJ., concur. Peterson, Smith and Hays, JJ., dissent.