120 Iowa 640 | Iowa | 1903
Lead Opinion
It may perhaps be assumed, from the hour of the day and the place and the street where the
It is contended for the appellant, however, that in the present case deceased was not in a situation to see the approaching car, by reason of the obstruction to his view offered by the moving wagons, until he had gone into a
Where a passenger, after alighting from a street car,, passed roupd the end of the car, and came into collision with a car on another track, it was held, that such person-was, as matter of law, chargeable with contributory negligence such as to defeat recovery. Smith v. City & Suburban R. Co., 29 Or. 589 (46 Pac. Rep. 136, 780). So, where-one approached a street car track back of a row of trees-extending along the track, which obstructed his view, it was held that, as matter of law, he was negligent in not-stopping to look or listen for a car when he passed the end of the row of trees and went upon the track. Kelly Wakefield & S. Str. R. Co., 175 Mass. 331 (56 N. E. Rep. 5 reasonable • stmited view' 285). In this last case it is conceded that it is-not in all cases essential to stop for the purpose of looking and listening when about to-go upon a street car track; but in that case, as in this, the-obstruction was so close to the track that there could not. have been an unobstructed view for any considerable distance between the time of passing the obstruction and eoming upon the track, and the court held that it was the-duty of plaintiff, “knowing that he could not see a car,.
Oounsel for appellant contend, however, that the presumption arising from the instinct of self-preservation is not to be limited to the very instant of going into danger, as to which we have seen by the cases already cited, it is expressly negatived and overcome, but that it may be presumed.that deceased, on leaving the curbing, about seventeen feet from the street car track, looked in the direction from which this car was coming, and, seeing it further south than the line of wagons, which must have extended at least one hundred and fifty feet along the track, calculated that, if the car was approaching at a lawful rate of speed, he'would have time to cross the track before the' car would reach him, and that the question whether this calculation on his part was reasonable should have gone to the jury. There are several objections to this line of reasoning. In the first place, there is not a scintilla of evidence that deceased looked before he left the curbing and saw the approaching car so far away that it would not reach him, if moving at a lawful rate of speed, until he
The origin in this state of the rule that the presumption of action dictated by the instinct of self-preservation is due to the peculiar doctrine announced by this court in early cases that the burden of showing affirmatively freedom from contributory negligence is on the plaintiff; and it was introduced in order to avoid the evident injustice of such a doctrine in cases where there was no evidence whatever one way or the other as to the exercise of care by the injured party, and no such evidence was attainable by reason of the death of the party injured and absence of any proof as to the circumstances attending the injury. Greenleaf v. Illinois Central R. Co., 29 Iowa, 14; Way v. Illinois Central R. Co., 40 Iowa, 341. Where there is direct evidence as to the circumstances of the accident, the presumption is not to be entertained. See Bell v. Incorporated Town of Clarion, supra, where the cases are fully collected.' It never has been held that the presumption from the instinct of self-preservation .constitutes afirma-' tive proof of any specific act, or the exercise of any specific care. The deceased in this case would not have been guilty of contributory negligence by reason of failure to
Counsel for appellant relies on a line of cases in which it is held that where a person about to cross a street car track is required to exercise judgment as to whether he can cross before an approaching car reaches him, the question whether he was justified, as a reasonable person, in making such attempt, is for the jury. Patterson v. Townsend, 91 Iowa, 725; Callahan v. Philadelphia Traction Co., 184 Pa. 425 (39 Atl. Rep. 222); McGovern v. Union Traction
Dissenting Opinion
(dissenting). — In my judgment, the record presents a case which should have been submitted to the jury. The evidence would clearly justify a finding that the car which struck the plaintiff’s intestate was being operated at a reckless rate of speed along a much traveled street, and in clear violation of a city ordinance. Assuming that the jury believed this testimony, as was their right to do, the negligence of the defendant was abundantly established. The deceased was strictly within his
No case has been decided by us, not excepting Bell v. Incorporated Town of Clarion, which goes “farther than to say that, as to any particular material act or fact off which living witnesses are able to testify, no presumption of due care will be indulged. It has never been, and I trust never may be, held that where the question of contributory negligence depends, or may depend, upon a' series of facts or circumstances, the production of living witnesses as to one has the effect to exclude all presumption or inference of due care as to others of which no witnesses can be found. Indeed, as I read the authorities,, the contrary rule is well established. In Whitsett v. R. R., 67 Iowa, 158, in discussing this question, we said: “But when the facts of the transaction are proven by direct testimony the question whether the party acted negligently or with care is to be determined from those-facts.” In Reynolds v. City of Keokuk, 72 Iowa, 372, we-referred to our prior decisions in this class of cases, and in. explanation said: “In these last cases the injured person, was dead; and what caused his death, or the facts tending-to show contributory negligence on his part, or. the-reverse, did not clearly and certainly appear; and therefore the instinct of self-preservation was held to be a circumstance which the jury was entitled to consider. But where the injured person is living, and does or can testify to the facts and circumstances and in what manner the injury was received, then there is no reason why the inference arising from the instinct of self-preservation
How can it be said, then, because in the instant between the discovery of the decedent at the rear of the wagon and the collision, he was not seen to pause and look for the car, we must deny him the presumption of reasonable care to' that point? We are told by the majority opinion “there was direct evidence of contributory negligence at the instant of the accident,” and “therefore it is immaterial what care he may have exercised prior to that moment.” This, it seems to me, is a begging of the entire
In Dalton v. R. R., 104 Iowa, 26, deceased met his death upon a public crossing by collision with a train running at a negligently high rate of speed. The accident occurred at n’ght, and, according to the statement in the opinion, “no one witnessed the accident, nor the manner in which the deceased approached and went upon the
In Hendrickson v. R. R., 49 Minn. 245 (51 N. W. Rep. 1044, 16 L. R. A. 261, 32 Am. St. Rep. 540), there was direct evidence that the deceased was seen to drive down •fo and upon the right of way, and was discovered by the
An intestate was found fatally injured in a pit negligently left unguarded. He was acquainted with the pit, and knew of its unguarded condition. ■ There was no witness of the accident. The trial court having nonsuited the administrator because of his failure to show' want of contributory negligence on part of the deceased, the judgment was reversed. The court says: “The person injured did not live to tell his story. We think the ease should have been submitted to the jury. There is ordinarily a certain degree of presumption that a person of ordinary intelligence will not purposely expose himself to danger.” Cassidy v. Angell, 12 R. I. 447 (34 Am. Rep. 690).
Discussing the same proposition, the New York court says: “The onus probandi in this, as in most other cases, depends upon the position of the affair as it stands upon the undisputed facts. Thus, if a carriage be driven furiously upon a crowded thoroughfare, and a person is run over, he would not be obliged to prove that he was cautious and attentive, and he might recover though there were no witnesses of his actual conduct. The natural instinct of self-preservation would stand in the place of positive evidence, and the dangerous tendency of defendant’s conduct would create so strong a probability that the injury happened through his fault that no other evidence would be required.” Johnson v. R. R., 20 N. Y. 65 (75 Am. Dec. 375). In the absence of direct proof, the jury are at liberty to infer ordinary care from the circumstances of the case. To hold otherwise would be to presume negligence on the part of one in excuse of proved or
It is to be conceded that decisions maybe found which seem to deny the existence of the presumption in any case, but the doctrine of its existence is upheld by the great weight of authority. In no other case have we found it restricted to such narrow limits as are drawn in the majority opinion.
But, aside from this presumption and the question of its extent, the case is still one for the jury. The deceased was not a trespasser. He had an undoubted legal right to cross the street — a right which the appellee was bound to respect by operating its cars at reasonable speed, and with due care for his safety. It necessarily follows that deceased was not so strictly bound by the rule of “stop, look, and listen” as would be the case in crossing the right of way of an ordinary railroad. Orr v. R. R., 94 Iowa, 426; Beem v. R. R., 104 Iowa, 565; Walker v. R. R., 81 Minn. 404 (84 N. W. Rep. 222, 51 L. R. A. 632); Newark etc., Ry. Co. v. Block, 55 N. J. Law 605 (27 Atl. Rep. 1067, 22 L. R. A. 374). He had the right to proceed upon the theory that the railroad company would do its duty. He was not required to anticipate its culpable negligence. Smith v. Union Trunk Line, 18 Wash; 351 (51 Pac. Rep. 400, 45 L. R. A. 169); Cincinnati R. R. v. Snell, 54 Ohio St. 197 (43 N. E. Rep. 207, 32 L. R. A. 276). As suggested in the opinion in the New York case above cited, the man who drives his horse furiously down a crowded city street to the imminent peril of other travelers is not to be allowed
Says the Ohio court: “Ancient rights have not changed because new vehicles have been introduced upon the streets, nor because a portion of the people who ride, being in haste to reach their destination, demand rapid transit. The streets remain for all the people, and he who goes afoot has the right, especially at a crossing, to walk to his destination. He should not be compelled to run or to dodge and scramble to avoid collision with vehicles. As a general proposition, drivers of vehicles have the same right to travel along the carriageway that foot passengers have to walk there. There is no priority of right. So that the right of neither is exclusive.
In the case from which the foregoing quotation is made the plaintiff, leaving a car on one track, stepped across a three-foot space upon another track, and was run down. It was sought to avoid liability by urging that the plaintiff could have avoided injury by looking, and therefore could not recover; but the court says: “Whether looking eastward would have disclosed the coming car depends upon whether the receding car would have obstructed the view, and this depends upon its location at the time Snell looked, if he did look. The evidence is consistent with the conclusion that he looked up the track, but that the receding car prevented him from seeing the approaching one, and that, as the former made some noise, his attention was not called to the rumbling of the latter. And it is not inconsistent with the conclusion that ordinary range of vision would probably have enabled him, without turning his head or eyes up the track, to see' the car in time to avoid it, had the car been running at a safe rate of speed; and we think one crossing could not be asked to extend his observation beyond that distance
In the last cited case it is said of the foot passenger’s duty to look oat for approaching cars: “But the request before us brings into question the extent to which one crossing the roadway on foot must extend his observation. Its'claim is that such observation must be extended to any approaching car, no matter how distant.' But this is obviously an exaggerated notion of the duty required. The most prudent man would never suppose himself required to thus observe. * * * Prudence doubtless requires any one about to cross a railroad track to use his eyes to observe any approaching car within his vision; but, as has been shown, prudence does not require one crossing the track of a street railway to extend his observation to the whole line of track within his vision, but only to such distance as, assuming the required care in their management, approaching cars would imperil his crossing. ” Dunbar, J. in Smith v. Union Trunk Line, supra, says: “Of course, the
Whether an injured party could have avoided the injury by moving from the track more quickly, is for the jury to determine. Hicks v. R. R., 124 Mo. 115 (27 S. W. Rep. 542, 25 L. R. A. 508). Whether one who has looked or listened for moving cars at a crossing should have renewed his observations at a point nearer the track, is for the jury. Newhard v. R. R., 153 Pa. 417 (26 Atl. Rep. 105, 19 L. R. A. 563). In the Walker Case, supra, the Minnesota court says of the-1 ct of the plaintiff in stepping upon the track where she was injured: “If she then knew that the car was running at forty miles an hour, and was disregarding her signals to stop, it might be said as a matter of law that she was negligent in going forward; but we cannot, without weighing diverse speculations and usurping the functions of the jury, decide upon the effect of the headlight upon her vision, or the reasonableness of her necessarily instantaneous views at the time. It may have been extremely difficult to discriminate between the effects of the headlight and decide upon its probable distance from her, or to calculate upon the speed of the car; and it must not be forgotten, either, that the judgment of the plaintiff in these respects may have been influenced by the reasonable supposition that the car was running at its proper speed, and would stop upon the signals given for her benefit.” If the injured party was guilty of no culpable negligence, the mere fact that he might have avoided the injury by greater diligence will not defeat his recovery of damages. Fero v. R. R., 22 N Y. 213 (78 Am. Dec.
A traveler driving across a street railway looked in oiie direction, but did not look in the other, from which a car was approaching, until the heads of his horses were over the near rail, and he was unable to advance or retreat in time to avoid the collision. Upon this state of facts the Minnesota court, after a careful review of the law, held the question of contributory negligence could not be disposed of as a matter of law. Shea v. R. R., 50 Minn. 395 (52 N. W. Rep. 902.) A similar proposition is affirmed in Guggenheim v. R. R., 66 Mich. 150 (33 N. W. Rep. 161). In Massachusetts, where it has been said (Ernst v. R. R.) supra) “no undue rigor of intendment is suppo ed to prevail on this subject,” the samé principle is well established, even as to the ordinary railroads. The view of a railway was somewhat obscured to one approaching the crossing, but at a point thirty feet from the rails the track could be seen for the distance of a half a mile. A woman drove to the crossing as a freight train was going by, and, waiting until she supposed the last car' to have passed, drove on, without looking up the track, and was run down by cars which had been purposely detached from the freight train, and were following it of their own momentum. Had she looked at any point within the thirty feet, she could have seen the approaching cars, and avoided
If such is the law as applied to travelers crossing a railroad, and if, as must be conceded, the rule is still less stringent as applied to street railways, there seéms no possible escape from the conclusion that the district court
Tried by the standard of principle as well as by the precedents, the plaintiff should have been allowed to goto the jury. In my opinion, therefore, the judgment below, should be REVERSED.