But the road appeared to continue across on the north side of the track. Plaintiff could see the road north of defendant's track looked a little rough. 20 to defendant's track was smoothly graded and appeared to be finished. He was going to visit a brother who lived farther north and east on this road. His wife and two small children were with him. On the night of September 16 he drove his 1953 Chevrolet sedan north from Highway 20 on the new grade of Prier's Road. Plaintiff is a farmer living near Manchester. Because of the delay in delivering the culvert the county's road making equipment was moved from the job to another location on September 13. Between the track and the place for the culvert the rough grading was done but it was not smoothly graded and on the night of the collision an automobile could be driven over this part of the road, if at all, only with difficulty. At the north end of this stretch a culvert was to be placed across *24 the road but its delivery was delayed. The improvement was virtually completed by September 13 except for a strip 200 feet long north from defendant's track. The county commenced work on the road on or before August 1. The rights of way of the two railroads comprise all the land between the two tracks at this location. Defendant's representatives assented to both inquiries. One or more officials of the county asked representatives of defendant if it was all right to relocate this crossing and if the county could use dirt from defendant's right of way in making fills for the new grade. Straightening the road required moving the crossing over defendant's track about 70 feet to the east of its then location. Dubuque county decided to regrade the entire road and to straighten and level it between the two railroads. In July, 1954, this road between the two sets of tracks was not straight and its elevation was not uniform. None of these directions is true to the compass. 20 across both railroads and then turns east. A public road known as Prier's Road extends north from U.S. Highway 20 also runs generally east and west about 900 feet south of the Illinois Central track. ![]() Defendant's track runs generally east and west about parallel to and 180 feet north of the Illinois Central railroad track. The collision occurred about 1½ miles east of Dyersville. It is of course our duty to consider the evidence in the light most favorable to plaintiff. Principal argument in support of the second contention and one of two arguments to support the third is that plaintiff was a trespasser upon defendant's track and it owed him no duty except to exercise reasonable care to avoid injury to his car after discovering its presence on the track. From jury verdict and judgment for plaintiff of $1,306 defendant has appealed.ĭefendant contends: 1) plaintiff was contributorily negligent as a matter of law, 2) it owed plaintiff no duty to erect barricades or warning signs near the alleged crossing, and 3) there was no evidence to support the claim of defendant's negligence in operating its train. This is a law action to recover damages for destruction of plaintiff's automobile when struck by defendant's freight train at what plaintiff alleges appeared to be a public highway crossing in the country. ![]() *23 Evans, Duncan, Jones, Hughes & Riley, Des Moines, and Kenline, Roedell, Hoffman & Reynolds, Dubuque, for appellant.Ĭlewell, Cooney & Fuerste, Dubuque, for appellee. CHICAGO GREAT WESTERN RAILWAY COMPANY, a Corporation, Appellant.Īs Modified on Denial of Rehearing September 20, 1957.
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