Coonley v. Lowden

The nominal plaintiff is Coonley, as receiver for Borcherding, the injured man and driver of the automobile which collided with the train. Defendants are trustees of the railroad. We will refer to Borcherding as plaintiff and the railroad as defendant.

The collision occurred about 8 a.m. on November 26, 1941, at the intersection of First Avenue N.W. and the Rock Island tracks in Hampton. Plaintiff, a carpenter, aged sixty-four, was driving his 1932 Chevrolet west. The passenger train came from the north on the east track. There were three tracks at this crossing. Two charges of negligence against defendant were submitted to the jury: failure to signal approach of the train, and its excessive speed. No claim is made that the evidence was insufficient to warrant a finding that the speed of the train was excessive or that the bell required by statute and the whistle were not sounded. The train was almost four hours late.

[1] I. Defendant states its first proposition substantially thus:

"The evidence affirmatively establishes that there were no substantial obstructions to the view of Borcherding, and that had he looked to the north at any point within 125 feet of the crossing, he must have discovered the approaching train. Under such circumstances, his testimony that he looked but did not see the train convicts him of contributory negligence as a matter of law."

The record, viewed in the light most favorable to plaintiff, does not support defendant's contention that there were no substantial obstructions to plaintiff's view. For five years plaintiff had lived a little over a block east of the crossing in a house facing east. The crossing is near the northwest edge of Hampton. Only about six houses are west of the tracks. Plaintiff had not driven over this crossing very often. He generally used the crossing a block south, on paved primary Highway No. 10. The street in question is graveled. Aside from plaintiff's house, in the southeast corner of the block, there are three houses in that block facing the north side of the street on which plaintiff drove. In the southwest corner of the block is the Windelow house, about 150 feet east of the railroad. West of the Windelow house and parallel to the railroad is a north-and-south street extending south to Highway 10. West of this street is railroad ground on which are the depot and other railroad buildings.

One hundred fifty-two feet north of the center of the crossing and just east of the track is a motorcar house, 8 by 7 feet and 6 feet high. Thirty-two feet north of this shed is the signal-maintainer's office and tool house, 20 by 10 feet. Plaintiff estimated the height of this building at 14 to 15 feet. Defendant's section foreman testified it measures 12 1/2 feet high. Ten feet north of this building is a tool house, 16 by 10 feet by 11 feet high. One hundred seventy-five feet north of the crossing, about even with these buildings, the track turns to the northwest. These buildings, therefore, obstruct the view of a train from the north much more than if the rails continued on more nearly to the north. Less than 100 feet south of the crossing and just east of the track was the passenger depot, about 22 feet high, which obstructed the view to the south.

Traveling west, the view of the railroad to the northwest is partially obstructed by two good-sized trees southwest and south of the Windelow house. There was a pile of wood 10 feet high west of this house. There is much testimony regarding weeds 4 to 6 feet high, bushes and brush on railroad ground west of the Windelow house, that obstructed plaintiff's view. "The weeds were all around there on the railroad ground." Some of the bushes were about 15 feet high. Twenty to 25 feet east of the track, and about 15 feet north of the sidewalk on the north side of the street, a section worker's model-A Ford was parked, parallel to the sidewalk. Testimony for plaintiff is that the section worker's automobile obstructed the view, partly because the ground on which it stood was 1 1/2 to 2 feet higher than the road.

Plaintiff testified that he drove about ten miles an hour; he could stop his car in about 10 feet; his motor made no particular noise; the south window of his car was open a little; his north window was half open, his car windows were clear. "As I left my house that morning, I was looking for trains. I was listening fortrains from the time I left the house up until the accident." He heard no bell, whistle, or other warning at any time. (At least four presumably disinterested witnesses also so testified.)

As he came out from behind the Windelow house plaintiff looked to the northwest. Bushes and weeds obstructed his view. Plaintiff testified:

"There was a lot of brush there so you couldn't see that train * * * I am sure that I looked to the north before I got 30 feet from the track. * * * I did look to the north about as I came up toward * * * this north and south roadway. * * * [This would be about 100 feet east of the track.] I didn't see no train. * * * After you get out from behind the Windelow house, there was weeds there and trees that prevented my view of the tracks at that point. * * * As you go further west them buildings prevent you from having a view of a train coming around that curve from the northwest."

Plaintiff and his son both testified that the first clear, unobstructed view to the south was from a point about 30 feet east of the crossing and the first clear view to the north was from 15 to 20 feet east of the crossing. "It was about 15 feet off from the track, some place around there." Plaintiff testified:

"As I came up to the crossing, l 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 * * * a little less than 100 feet away. * * * I don't know what I did next * * * I know I turned my car to the south a little bit. * * * I don't have any recollection of what happened from the time I saw the train until I came to, underneath the automobile."

Plaintiff's testimony is that he looked north the last time as soon as his view in that direction was unobstructed. The train struck the right rear of the car, which came to rest about 50 feet south of the crossing. Plaintiff was seriously and permanently injured.

Three important witnesses for defendant, paid by its claim investigator to make observations two days after the collision, testified that from a point about 75 feet east of the crossing the three railroad buildings along the track were a substantial obstruction to the view to the northwest.

In general, we have held that where the view of the railroad is obstructed or where there are diverting circumstances, the question of contributory negligence is usually for the jury. In Artz v. Chicago, R.I. P. Ry. Co., 34 Iowa 153, 160, 161, through Cole, J., this court said:

"We have given to the cases upon this subject, in the different States, a somewhat extended examination, and almost without exception they concur in holding, that where a person, knowingly about to cross a railroad track, may have an unobstructed view of the railroad, so as to know of the approach of a train a sufficient time to clearly avoid any injury from it, he cannot, as a matter of law, recover * * *. [Citing numerous cases.]

"But, if the view of the railroad, as the crossing is approached upon the highway, is obstructed by any means, so as to render it impossible or difficult to learn of the approach of a train, or there are complicating circumstances calculated to deceive or throw a person off his guard, then, whether it was negligence on the part of plaintiff or the person injured, under the particular circumstances of the case, is a question of fact for the jury." (Citing many cases.)

The above statement has been frequently reiterated by many different courts. For seventy years we have adhered to the rule of the Artz case. See, for example, Winey v. Chicago, M. St. P. Ry. Co., 92 Iowa 622, 625, 626, 61 N.W. 218 (opinion by Deemer, J.); Bush v. Chicago, R.I. P. Ry. Co., 216 Iowa 788, 793, 247 N.W. 645 (by Mitchell, J.); Markle v. Chicago, R.I. P. Ry. Co.,219 Iowa 301, 305, 257 N.W. 771 (Kintzinger, J.). See, also, Selensky v. Chicago G.W. Ry. Co., 120 Iowa 113, 117, 94 N.W. 272 (McClain, J.). Applying this rule to this case, the question of contributory negligence was for the jury.

A traveler approaching a railroad must look when by looking he can see. A traveler is required to look for approaching trains within a reasonable distance from the crossing, but not at any particular place nor at all points. It is ordinarily for the jury to determine whether he selected a proper place for making observation and otherwise used ordinary care for his safety. When the jury could find that a traveler looked within a reasonable distance from the crossing, a court will not ordinarily say, as a matter of law, he was guilty of contributory negligence because he did not look again from some other designated point from which he might possibly or probably have discovered the train. That some other course might have been better or safer or have avoided the collision does not establish, as a matter of law, contributory negligence. A plaintiff is not to be judged by what might now appear to have been the safer course. The law does not require perfect care, but only ordinary care under the attendant circumstances. Nor does the law specify precisely what must be done in the exercise of such care.

Among the numerous cases which affirm the above propositions are Markle v. Chicago, R.I. P. Ry. Co., 219 Iowa 301, 304, 257 N.W. 771; Anderson v. United States R.R. Admn., 203 Iowa 715, 718, 211 N.W. 872 (Vermilion, J.); Nederhiser v. Chicago, R.I. P. Ry. Co., 202 Iowa 285, 290, 291, 208 N.W. 856 (DeGraff, C.J.); Alitz v. Minneapolis St. L.R. Co., 196 Iowa 437, 441, 193 N.W. 423 (Weaver, J.); Butterfield v. Chicago, R.I. P. Ry. Co.,193 Iowa 323, 326, 185 N.W. 151 (Weaver, J.); Wiese v. Chicago G.W. Ry. Co., 182 Iowa 508, 511, 166 N.W. 66 (Ladd, J.); Case v. Chicago G.W. Ry. Co., 147 Iowa 747, 751, 752, 126 N.W. 1037 (Deemer, C.J.).

Plaintiff had a right to assume, unless he knew or should have known otherwise, that the train would signal its approach by ringing the bell as required by statute and, if required by ordinary care, by sounding a whistle. Saeugling v. Scandrett,230 Iowa 153, 156, 296 N.W. 787, 788 (Sager, J.); Anderson v. United States R.R. Admn., 203 Iowa 715, 717, 211 N.W. 872; Barrett v. Chicago, M. St. P. Ry. Co., 190 Iowa 509, 515, 175 N.W. 950, 188 N.W. 670 (Ladd, J.). It appears that plaintiff knew there was a city ordinance limiting the speed of trains to twenty-five miles per hour when approaching crossings in Hampton. Plaintiff also had a right to rely, in the absence of knowledge or notice to the contrary, upon compliance by the railroad with this ordinance. Butterfield v. Chicago, R.I. P. Ry. Co., 193 Iowa 323, 328, 185 N.W. 151; Platter v. Minneapolis St. L.R. Co.,162 Iowa 142, 158, 143 N.W. 992 (Deemer, J.); Case v. Chicago G.W. Ry. Co., 147 Iowa 747, 751, 126 N.W. 1037; 3 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., 160, section 1758. Ordinarily, a party need not anticipate another's negligence. 38 Am. Jur. 871, section 192.

We have repeatedly held that it is difficult to divorce the reciprocal duties of railroad and traveler and it is proper to consider, on the issue of contributory negligence, the right of the traveler to rely upon the railroad's compliance with the law. This is especially true of requirements designed to warn the traveler of the train's approach. True, the failure to signal does not relieve the traveler from exercising ordinary care on his part. But the absence of a warning signal may have the effect of lulling the mind into a sense of security. The testimony that no signal was given is therefore properly to be considered on the question of contributory negligence. See authorities in preceding paragraph; also, Nederhiser v. Chicago, R.I. P. Ry. Co.,202 Iowa 285, 291, 208 N.W. 856; Haven v. Chicago, M. St. P. Ry. Co., 188 Iowa 1266, 1269, 175 N.W. 587 (Salinger, J.); Davitt v. Chicago G.W. Ry. Co., 164 Iowa 216, 222, 145 N.W. 483 (Withrow, J.); Dusold v. Chicago G.W. Ry. Co., 162 Iowa 441, 449, 142 N.W. 213 (Gaynor, J.); 3 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., 155, 156, section 1757.

Defendant cites, in support of its first proposition, Nurnburg v. Joyce, 232 Iowa 1244, 7 N.W.2d 786; Hitchcock v. Iowa Southern Util. Co., 233 Iowa 301, 6 N.W.2d 29; Meier v. Chicago, R.I. P. Ry. Co., 224 Iowa 295, 275 N.W. 139; and Darden v. Chicago N.W.R. Co., 213 Iowa 583, 239 N.W. 531. They are not in point.

In the Nurnburg and Meier cases, the traveler had an unobstructed view for about 150 feet before the crossing was reached and would have seen the train had he looked. In the Hitchcock case, plaintiff conceded that decedent saw the train when he was 250 feet from the crossing; he was driving so fast he was unable to avoid the collision. The basis of the Darden decision is thus stated in the opinion, at page 586 of 213 Iowa, page 533 of 239 N.W.:

"Where the physical facts are such that, had the plaintiff looked for a train at the distance from the track where she said she did look, she would have seen the approaching train, her failure to see the train shows that she did not look, as she said she did, and she was guilty of contributory negligence as a matter of law."

The rule of the Darden case appears to be the theory on which defendant here argues that plaintiff was contributorily negligent as a matter of law, in that had he looked to the north "at any point within 125 feet of the crossing, he must have discovered the approaching train." The argument is not applicable under the facts here.

Carlin v. Thompson, 234 Iowa 469, 475, 476, 12 N.W.2d 224, 227, is also readily distinguishable. The majority opinion there points out it was "quite conclusive that for the last 300 feet covered by plaintiff before the collision, he must have had a practically unobstructed view of the train." It is also pointed out that because of the peculiar fact the plaintiff was concededly traveling about three times as fast as the train, evidence of obstructions to the view was unimportant — "evidence that would be immensely significant if the respective rates of speed of the two vehicles were reversed." Here there is evidence the respective rates of speed are reversed.

It might be argued plaintiff was negligent in failing to discover the train sooner or in not avoiding the collision after having discovered it. Of course, a jury could so find, but we cannot so hold as a matter of law. There is substantial evidence that plaintiff looked both south and north as soon as his view in either direction was unobstructed. It was his duty to look in both directions. 3 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., 138, section 1746. He had previously looked to the north, from what the jury could find was a reasonable place, and had seen no train. The physical facts are not such that he must have seen the train. He says he was constantly listening for a train. Under our decisions, as defendant concedes, plaintiff was not required, as a matter of law, to stop before going on the crossing. Love v. Fort Dodge, D.M. So. R. Co., 207 Iowa 1278, 1286, 224 N.W. 815 (Kindig, J.), and cases cited.

We cannot say, as a matter of law, that plaintiff was negligent in not avoiding collision with a train which was less than 100 feet away, that he discovered when about 15 feet from the crossing. True, he says he could stop, traveling at ten miles an hour, in 10 feet. We have held, however, "when speeds and distances are spoken of, we are dealing with estimates and not with certainties." Short v. Powell, 228 Iowa 333, 335, 291 N.W. 406, 407 (Sager, J.). "We are dealing in fractions of seconds, and courts cannot say as a matter of law which of the two parties was to blame." Eby v. Sanford, 223 Iowa 805, 807, 273 N.W. 918 (Mitchell, J.).

See, also, Hines v. Chicago, M. St. P. Ry. Co., 196 Iowa 109, 115, 194 N.W. 188 (DeGraff, J.); Case v. Chicago G.W. Ry. Co.,147 Iowa 747, 752, 753, 126 N.W. 1037. Courts cannot say that the ordinary person, under such circumstances, would not require some time to marshal his faculties and decide what should be done. Brakes cannot always be applied instantly. We have recognized a "thinking distance" — that is, the distance traveled while a motorist thinks about stopping his car. Luse v. Nickoley,231 Iowa 259, 264, 3 N.W.2d 503, 505 (Mitchell, J.). At ten miles an hour plaintiff would cover the 15 feet between his point of observation and the rails in approximately one second. Plaintiff came within a fraction of a second of clearing the crossing before he was struck.

The decisions heretofore cited in support of this opinion fully sustain our conclusion that the issue of contributory negligence was for the jury. Special attention is called to 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; Lutz v. Davis, 195 Iowa 1049, 192 N.W. 15 (Faville, J. — not previously cited); Barrett v. Chicago, M. St. P.R. Co., 190 Iowa 509, 175 N.W. 950, 180 N.W. 670; Davitt v. Chicago G.W.R. Co., 164 Iowa 216, 145 N.W. 483; Selensky v. Chicago G.W. Ry. Co., 120 Iowa 113, 94 N.W. 272. Except that the dissent of Salinger, J., is noted to a supplemental opinion in the Barrett case, supra, we have cited no opinion to which there is a dissent or special concurrence. Except that the no-eyewitness rule is somewhat involved in the Barrett case and in Platter v. Minneapolis St. L.R. Co., supra, 162 Iowa 142, 143 N.W. 992, we have cited no decision involving that rule. And in every case cited plaintiff had the burden to prove freedom from contributory negligence.

[2] II. Defendant next complains of the refusal of a requested instruction on contributory negligence containing the statement:

"If the view is obstructed to his knowledge to such extent that ordinary care requires that his vehicle be stopped before going upon the track, then a failure to stop such vehicle constitutes contributory negligence."

In view of the instructions given, the ruling was not error. The jury was told, among other things, that plaintiff was required to take such steps for his own safety as any person of ordinary prudence under like circumstances; such a person must realize he is approaching a danger zone and bring his car under corresponding control; if there is danger of collision it is for the motorist to stop and wait until the train has passed in safety; ordinary care is commensurate with the danger involved, if the danger is great, the care to be exercised must be great; reasonable care in approaching a railroad crossing is a high degree of care; a person is not permitted to gamble with fate or assume on general principles that he can cross with safety. These instructions were sufficient. See, as bearing on this matter, Love v. Fort Dodge, D.M. S.R. Co., 207 Iowa 1278, 1285, 1286, 224 N.W. 815, and cases cited.

[3] III. Defendant complains of the receipt in evidence of six photographs plaintiff caused to be taken in July 1942. We are told that foliage on the trees and vegetation were not then in the same condition as at the time of the collision.

There were received in evidence six photographs said to have been taken two days after the collision under the supervision of defendant's claim investigator. These photographs plainly show there was then no foliage on the trees. Plaintiff and his son both testified that defendant's exhibit 3 shows the condition of the foliage on the trees on November 26, 1941. Several witnesses testified there was then no foliage. The record shows no claim to the contrary.

Before defendant's photographs were offered, plaintiff offered and there were admitted the six photographs of which defendant complains. The photographer, who had lived in Hampton fourteen years, testified that each picture, with the exception of the foliage and an automobile in some of the pictures, was a fair representation of the view from a point 4 1/2 to 5 feet above the ground where the camera was located (stating the number of feet from the crossing and in what direction) on the date of the collision. Plaintiff also verified the photographs as fair representations of the view at the time of the collision, with the exception of the foliage and the automobile. Of course, the credibility of this testimony was for the jury. One of these photographs was taken from a place on the track a block north of the crossing and merely shows the view toward the depot. Another was taken from a point 225 feet east of the crossing and shows the east side and part of the south side of the Windelow house. Neither of these two pictures was prejudicial to defendant.

The other four photographs were taken from points in the road 15 to 125 feet east of the crossing. In one of these four pictures is an automobile placed where testimony shows the section worker's car was parked at the time of the collision. The car shown in the picture is a late model "two door," which we may well take judicial notice was lower and would obstruct the view less than the section worker's "model A." Another picture shows a small part of this car. That these two photographs were not rendered inadmissible because they show all or part of this car, see Dice v. Johnson, 198 Iowa 1093, 1099, 199 N.W. 346; annotation 27 A.L.R. 913, 916; 3 Jones, Commentaries on Evidence, Second Ed., 2577, 2579, section 1418, and cases cited n3. Another picture shows a small part of another car which happened to be parked southwest of the Windelow house when the photograph was taken. No significance is claimed for this car.

One of these four pictures (exhibit 1) shows a few trees with foliage in the Windelow yard. The other three photographs also show a few trees with foliage east and north of the railroad buildings, 150 feet or more north of the crossing. But the jury was plainly told these pictures did not accurately show the condition of the foliage at the time of the collision, and could not have been misled by the fact there was foliage shown in the pictures.

Plaintiff's photographs also show some weeds. As stated, testimony for plaintiff is that there were weeds 4 to 6 feet high northeast of the crossing at the time of the collision. That there were some weeds about that high plainly appears from pictures taken by defendant, exhibits 5, 6, and 8. Naturally, the exact location, extent, and height of these weeds were disputed. Several witnesses testified fully on these matters.

None of the twelve pictures shows the wood pile west of the Windelow house. In this respect, all the pictures are favorable to defendant. Further, plaintiff testified and the jury could have found there were more and higher weeds at the time of the collision than are shown in plaintiff's pictures taken the following July. If this testimony were believed, plaintiff's photographs in this respect were not prejudicial to defendant.

Except for seasonal changes in foliage and weeds, and the automobile and wood pile (the section worker's car is not shown in defendant's photographs) there is no claim of changed conditions between the time of the collision and the taking of plaintiff's pictures. In fact, it affirmatively appears from defendant's witnesses there was no such change. The railroad buildings just east of the track constituted a substantial obstruction to a view of the train. It is not contended plaintiff's photographs do not correctly show these buildings.

At the conclusion of the evidence, on October 22, 1942, at the request of both sides, the jury went to view the scene of the collision, a few blocks from the courtroom. The condition of foliage and vegetation at that time must have been generally similar to that on November 26, 1941. That the jury's view of the premises tended to obviate any prejudice to the railroad in the admission of plaintiff's photographs, see 9 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., 867, section 6368; Scott, Photographic Evidence (1942), 581, 588, section 671.

A ruling on the admissibility of photographs will not be interfered with on appeal except upon a clear showing of abuse of discretion. Ingebretsen v. Minneapolis St. L.R. Co., 176 Iowa 74, 83, 155 N.W. 327, and cases cited. The trend of authority is to vest more discretion in the trial court in a matter of this kind. Even substantial changes in the scene will not necessarily exclude a photograph where the changes can be explained. 32 C.J.S. 623, section 715. So far as we can find, we have never reversed a case because of the admission of photographs. Other courts have also been slow to reverse because of such a ruling. See, for example, Bruce v. Hanks, 277 Mass. 268, 178 N.E. 728, 729; Skaling v. Sheedy, 101 Conn. 545, 126 A. 721, 36 A.L.R. 540, 544. Reversible error does not necessarily result from the admission of a photograph even though it could properly have been excluded. Nolte v. Chicago, R.I. P. Ry. Co.,165 Iowa 721, 729, 730, 147 N.W. 192.

In 20 Am. Jur. 611, 613, sections 731, 734, it is said:

"Photographs of the scene of an accident taken at or near the time are not always obtainable, and the only practical rule would seem to be that the changes must not be such as to destroy the substantial identity and that the changes, whatever they may be, should be carefully pointed out and brought to the jury's attention. * * *

"A mere change in the appearance of a locality, arising from photographs having been taken at different seasons of the year, is open to explanation."

Applying the foregoing tests here, the reception of these photographs is insufficient basis for reversal. Riggs v. Pan-American Wall Paper Paint Co., 225 Iowa 1051, 1057, 1058, 283 N.W. 250; Salkin v. Erie R. Co., 3 Cir., N.J., 23 F.2d 677; Dyson v. New York New England R. Co., 57 Conn. 9, 24, 17 A. 137, 139, 14 Am. St. Rep. 82, 86, where it is said, "* * * the change in the appearance of the locality made by the falling of the leaves from the trees was of course open to explanation."; Snibbe [Surratt] v. Robinson, 151 Md. 658, 135 A. 838, 50 A.L.R. 280, 283; State v. Hines, 148 Minn. 393, 182 N.W. 450; Smith v. Wilson, Mo. App., 296 S.W. 1036, 1040, 1041; Beardslee v. Columbia Twp., 188 Pa. St. 496, 41 A. 617, 68 Am. St. Rep. 883, 885.

[4] IV. On cross-examination, plaintiff's witness Mrs. Blanchard said she had talked to no one about her testimony. On redirect, she said she had talked to defendant's adjuster, Campbell. This record then follows:

"Q. And he tried to get you to sign a statement saying that you heard a bell and whistle? A. Well, I don't know just how he did put it, now. He had a statement that he made out."

On recross-examination, defendant's counsel produced an unsigned statement on a railroad form, exhibit 7, and asked several questions regarding it. He had refused, upon plaintiff's request, to produce the paper unless so ordered. Apparently the witness was taking some time to examine the paper. The court then inquired, "Well now, gentlemen, what is there about this that can possibly prove or disprove anything in this case?" Defendant's counsel replied that plaintiff's counsel had questioned the good faith of the adjuster. He then offered the unsigned statement in evidence. Plaintiff's objection of hearsay was sustained. The statement recited among other matters, "I did not hear the train whistling * * *."

It seems to us that the mere asking by plaintiff's counsel of the question we have quoted was insufficient basis for the admission of this statement which was clearly hearsay. The witness did not give an affirmative answer to the question and testified to nothing that made this unsigned statement admissible. Further, the offer of additional evidence that a whistle was not sounded would seem to be of doubtful benefit to defendant. In any event, the exhibit was properly excluded because it was not identified as the statement prepared by Campbell which the witness was asked to sign. Perhaps the court should not have interrupted the examination, but its inquiry is insufficient basis for reversal.

[5] V. Part of Instruction No. 7 states, in substance, that while there is no statute requiring it, the peculiar circumstances surrounding a crossing may be such that the sounding of a whistle may be necessary in the exercise of ordinary care for the protection of the public, and that if reasonable care under the circumstances here required the sounding of a whistle and no whistle was sounded, a finding of negligence would be warranted.

Section 8018, Code, 1939, requires the sounding of a whistle and bell at road crossings, but provides that in cities or towns the whistle may be omitted unless required by ordinance or resolution of the council. Because of this proviso in the statute, defendant contends it is under no duty to whistle for a crossing in a city or town, unless required by ordinance or resolution. As defendant concedes, however, our decisions are contrary to its contention. The instruction correctly states the law. The circumstances surrounding the crossing here were sufficient to warrant the submission of this charge of negligence. Glanville v. Chicago, R.I. P. Ry. Co., 196 Iowa 456, 460, 193 N.W. 548; Anderson v. United States Ry. Admn., 197 Iowa 1, 196 N.W. 584. See, also, Glanville v. Chicago, R.I. P.R. Co., 190 Iowa 174, 182, 180 N.W. 152; Thomas v. Des Moines Ry. Co., 231 Iowa 1003, 1007, 1008, 2 N.W.2d 655, 657.

[6] VI. In rebuttal, over objection, Wolf testified that on the day following the accident, or four days later, he observed burning on railroad ground northeast of the crossing. This testimony was apparently offered in an attempt to show that some of the weeds had been burned between the time of the collision and the taking of photographs offered by defendant. On cross-examination it developed that the burning was two blocks or more north of the crossing where the collision occurred. Defendant thereupon moved to strike Wolf's testimony. The overruling of the motion is assigned as error.

Since the cross-examination disclosed that the burning was at some distance from the scene of the collision, the evidence was not sufficiently material and relevant to be of probative value and defendant's motion should have been sustained. However, little if any prejudice could have resulted to defendant from the evidence and the ruling is insufficient basis for reversal.

No complaint is made of the size of the verdict. As defendant in effect concedes, it is for a comparatively small amount, considering the extent of plaintiff's injuries. — Affirmed.

BLISS, OLIVER, and MULRONEY, JJ., concur.

MULRONEY, J., also specially concurs as to Division I.

SMITH, C.J., dissents from Division I, and concurs in the other divisions of the opinion.

WENNERSTRUM, J., dissents from Division III, and concurs in the other divisions of the opinion.

HALE, MILLER, and MANTZ, JJ., dissent from Divisions I and III.