
    Joe Borough, Appellant, v. Minneapolis & St. Louis Railway Company, Appellee.
    RAILROADS: Accidents at Crossings — Negligence—Jury Question. 1 Evidence attending an accident at a crossing reviewed, and ° lield to present a jury question on the issue (a) of defendant’s negligence, and (b) of plaintiff’s contributory negligence.
    WITNESSES: Impeachment — Contradictory Statements. State-2 ments by a witness out of court contradictory of his statements in court do not constitute substantive evidence of the matter in issue.
    
      
      Appeal from Keokuk District Court. — John F. Talbott, Judge.
    April 4, 1918.
    Rehearing Denied September 20, 1918.
    Action to recover damages for personal injury. Opinion states the facts. The district court directed a verdict for the defendant. Plaintiff appeals.
    
    Reversed and remanded.
    
    
      C. C. Orvis, Hamilton & Beatty, and Talley & Snakenberg, for appellant.
    
      Burrell & Devitt and Stockman & Baker, for appellee.
   Gaynor, J.

This action is brought by the plaintiff to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in operating one. of its trains over a public crossing. The cause was tried to a jury, and, at the conelusion of all the evidence, the court instructed the jury to return a verdict for the defendant. The .verdict was accordingly returned, and, judgment being entered upon the verdict, plaintiff appeals.

It appears that the track on which the collision occurred, crosses a public highway, at the point of the injury, and runs east and west. North of this track is what is called the passing track. The plaintiff was driving north. The record shows that the distance from the south rail of the south track to the south line of the right of way fence is approximately 22 feet and 6 inches, and the distance between the south rail of the north track and north rail of the south track is approximately 11 feet. The rails are about 4 feet, 8% inches apart. This would make it about 88 feet from the south rail of the north or passing track to the fence on the south line of the right of way.

At the time plaintiff approached this crossing, there was a freight train standing on.the north or passing track. This train had been cut in two, or divided, so as to permit passage over the highway between the parted portions of this train. The train that struck plaintiff came from the east, was a passenger train, and was running about 30 miles an hour. The plaintiff, with two companions, was riding in a buggy, drawn by a single horse. The evidence tends to show that, as the plaintiff and his companions came upon the right of way from the south, and had passed cer-. tain obstructions in the way of hedges, cornfields, and telegraph poles along the south line of the right of way, the horse was stopped, and they looked to the east, and saw no train approaching from the east, and heard no whistle or sound of warning given of the approach of a train from that direction; that both tracks were clear, at that time, for passage; that plaintiff and his companions then discussed the propriety of attempting to pass between the divided freight train, and, some doubt having been expressed in the discussion as to whether this freight train was going to close up the passage or not, they reached a conclusion that they could pass between this divided freight train in safety. They then proceeded northward on their journey, without seeing or hearing anything to indicate a train approaching from the east, although they looked and listened, while so proceeding. Just as they reached the track on the south or main line, and just as the horse was passing upon that track, the testimony tends to show, the crew in charge of the freight train on the passing track suddenly closed the passage to the north; and they thereupon, for the first time, discovered a train approaching rapidly from the east. One of the parties in the buggy jumped, in time to escape. The plaintiff was seriously injured by the collision, and one of his companions was killed.

It appears that the main track east of this highway runs directly east, about 180 feet, and at that point curves, close to 30 degrees, to the northeast. There is a highway 1,800 feet east of the highway where the accident occurred. That highway runs east and west, and the railway track crosses it at right angles. There is another highway, 2,600 feet east of this highway, running directly north and south, and there the railway track crosses the highway at right angles, running directly east.- The north or passing track turns onto the main line at a point about 700 feet east of the center of the crossing on which the accident occurred. Thus it appears that, 1,800 feet east of the highway where the accident occurred, the main line track is running practically north, and 2,600 feet east, it turns to the east, and runs practically due east.

There is some confusion in the testimony as to just where the engine on the freight train was standing, at the time plaintiff and his companions entered the right of way. It is claimed by the plaintiff — and evidence is in the record to support it — that the freight engine was emitting smoke in large volumes; that this smoke came down over the highway; that it obscured their view to the east to a considerable extent; that they listened for the whistle and bell, but heard none; that their minds were occupied, to some extent, as they approached this opening between the freight cars, to ascertain whether they could pass through there with safety; that, as they approached, the freight-train was standing still, but, as they got up to or onto the main track, the train- suddenly backed up, and closed the passage; that one of the companions jumped out, and the other cried to the driver to turn the horse around [it will be noted that there is only eleven feet between the two tracks. Undoubtedly, the cars extended considerably over this, making the opening between much less] ; ■ that they were in the act of extricating themselves, when someone cried, “The passenger train is coming.” One jumped out, and one was killed, and plaintiff was injured by the collision.

Under this state of facts, we think that the negligence of the defendant and want of contributory negligence on the part of the plaintiff were questions for the jury.

There is evidence in the record from other parties not interested in this suit, that the whistle did blow, not only for the crossing at which the injury occurred, but at the road crossing east; and there is evidence that the bell rang continuously, and was ringing continuously prior to and at the time of the accident.

On the night of the accident, an inquest was had over the body of the dead person. Northrup, who escaped by jumping from the buggy, was a witness, and gave a strangely different account of the conditions there from that given by him on this trial. From that testimony, and from statements made by him immediately after the accident, it would seem that the parties had discovered the approaching train before attempting to cross, and that the discussion referred to on this trial related to their ability to cross ahead of the approaching train, and get through the opening before the freight train should close. The claim of this witness now is that he does, not remember what was said at that time; that he was greatly confused. But however that may be, the credibility of the witnesses is for the jury, and not for the court. Northrup also signed a statement, soon after the injury, in which he said:

“When .we approached the crossing, the horse was trotting. I noticed the train coming when we were about 20 feet from the main line track, and called the attention of the other boys to it; but they both said they thought they could make it across. I saw the headlight, and also heard the rumble of the train. Train on the siding was standing still, and the crossing was cut, and it didn’t move while I was in the buggy. I got out just before the mare stopped on the track. I did not notice that the driver tried to check the horse up at all.”

In another signed statement, he said:

“We saw a freight train standing on the track, with the train cut for the crossing. I heard the passenger train coming, and I said, “I don’t believe we can make it,’ and the others both said they thought they could. I did not realize the train was so close. When the mare was on the track, I first realized that the passenger was close. I then jumped out, and saved myself. I saw the headlight on the engine, but didn’t hear the bell rung. Didn’t hear the whistle blow. However, I heard the train coming.”

This, of course, was not substantive, evidence, and could only be used for the purpose of impeaching the witness. He was not a party to the suit. It was competent, however, for that purpose, and that purpose only. It was for the jury to say, in the light of all the facts and circumstances disclosed on the trial, what credit should be given to this testimony, — to say at which time he told the truth. He was the only living witness to the accident except the plaintiff, and the only one who was in a position to say just what they were doing prior to the collision. The jury might well have disregarded-his testimony altogether, except in so far as it was corroborated by other unimpeachable evidence in the cause. But this court does not sit in judgment upon the credibility of the witnesses. Both statements of this witness cannot be true. If he has deliberately falsified in one instance, it is quite impossible to tell from his testimony what the fact really is.

There would be no profit in setting out all the testimony; but there was positive testimony to the effect that, after they got on the right of way, and passed the obstructions, they stopped, looked, and listened; that, as they drove up to the track where the injury occurred, they were still listening; that the smoke from the engine on the sidetrack tended to obscure the view to the east; that there was no one stationed at the opening between the two parts of the freight train; that, when the freight crew saw the passenger train approaching, they immediately backed up, and closed the opening in the highway. There is evidence that they gave no warning to travelers upon the highway- that this movement was contemplated, or that it would take place. It is also claimed by plaintiff that, before the engine was moved to close the gap, the engine stood so near the main line that it obscured the vision to the northeast. These were all questions for the jury.

The testimony of plaintiff is that, when he passed the obstructions south of the right of way, he stopped the horse and looked; saw ilo train approaching; that a discussion then arose as to whether or not the train on the passing track would close before they had time to pass through.; that this discussion resulted in a conclusion that they could do so safely; that they then proceeded on their journey. It is claimed that they were still listening. The plaintiff testified :

“I didn’t hear nor see any train except the freight on the right of way at that time, nor did I hear any warning signal or bell or whistle on the passenger train, nor any light from an engine coming on the right of way. We drove right on; and, immediately after we got on the main track, and before we got through, the freight train closed up, and of course we couldn’t get through. As we approached, the freight train was standing there, headed to the east, just as it had been cut for people to go through. The engine was east of the highway, and the coal and one or two other cars, and the rest of the train and cars were west of the crossing. The opening was 10 to 12 feet, sufficient to drive through. I think, besides the tender, there were three cars attached to the engine, extending 50 to 75 feet east of the highway. Near the end of the hedge on the south side of the right of way, we stopped plumb still, and talked in regard to whether the train was going to close up. It was letting off steam, and we stopped and talked the matter over. We did not think it was going to shut up, because they nearly always have somebody there. [This last answer was, however, stricken out.] When I looked east, there was smoke and steam from the engine blowing off onto the right of way. I was on the track when I first saw the passenger train, and I told the driver to turn the ma.re around. The opening in front of us was closed. It was all done so quick. The wind was blowing from the north, and was blowing south at the time they closed the freight train. * * * The freight train engine obstructed the view of the main line. There is a curve there, and the main line swung around the freight engine so as to prevent me from seeing the coming train. From the public highway, after you pass the hedge fence, it is 20 feet before you reach the south rail of the main line. We stopped and looked for the train after we passed the hedge. We could see a train if one were coming. We were 20 feet south of the railroad when we stopped to look, and we could have seen the approaching train, had it not .been for the freight engine. The first I knew of the passenger train’s approach was when we were up on the main track. If it had not been for the smoke and steam, we could have seen the train. The accident occurred about 10 o’clock at night.”

Northrup, one of the parties, testified on this trial:

“I had not observed the .passenger train until we were about to drive on the track. Just then, the freight train jammed together. We kept looking for trains and listening for trains. I heard no train on the right of way that night. There was smoke coming from the freight engine that obstructed the view to the east. When I saw the train, I jumped out. The horse was trotting at the time I jumped out of the buggy, just before we reached the main line. There was steam and smoke from the freight engine settling down upon the main track, and that prevented us, on looking east, from seeing the approaching passenger train. No bell or whistle or warning was given of the approach of the passenger train.”

In setting out the testimony, we have only appropriated that which is most favorable to the plaintiff’s claim. This we must do, since the court did not permit the jury to pass upon it. Plaintiff is entitled to have the testimony of his witnesses accepted as true by this court, for the purposes of this hearing; and we cannot say, as a matter of law, that this record does not disclose negligence on the part )of the defendant and want of contributory negligence on the part of the plaintiff. It was for the jury to say what credit it would give to the plaintiff’s evidence, in view of the contradictory statements made by the witnesses, both on the question of the defendant’s negligence and on the question of want of contributory negligence. There was evidence that the bell was not rung; that the whistle was not blown. There was evidence that the train could not be seen, because of conditions there at the time plaintiff was approaching. There is evidence that plaintiff stopped, looked, and listened. We cannot say, as a matter of law, that 'there was not negligence shown on the part of the defendant sufficient to take the case to the jury. It was for the jury to weigh the evidence. It was in sharp conflict. We think the court erred in instructing the jury for the defendant.

We have so frequently discussed questions of this kind that we do not deem it necessary to set out the authorities on which our conclusions are based. Our books are full of cases involving substantially the same questions here submitted; and, for th.e reason aforesaid, the case must be and is — Reversed and remanded.

Preston, C. J., Ladd and Stevens, JJ., concur.  