195 Iowa 454 | Iowa | 1923
I. The accident occurred on April 11, 1921, in the city of Fort Dodge. The defendant street railway company operated a line of street railway in said city. Each car was manned by one man, who acted as motorman and conductor. Fallon was one of these. He made a round trip every hour. The round trip consisted in passing from the west end to the east end and back again. Fallon had just arrived at the west end a few minutes before 10 o’clock A. M. What is called the “west end” of the line is also a south end. The terminal at this end is on a north and south street, known as Fourth Street. The railway line extends south thereon to Third Avenue, and stops adjacent to a railway depot. At this terminal, the car stood in a north and south direction, the south end of the. car being its front end, upon arriving at this terminal, and being its rear end upon departure. Fallon arrived at this terminal with one passenger, which he there discharged. For the purpose of reversing his direction, it was his duty then to reverse the trolley pole and to transfer the controller and his cash box and his seat from the south end to the north end. This duty he performed. In changing his trolley pole, he passed first to the north end and then alongside of the car to the south end. He then boarded the car at the west door of the north end, and made the inside changes. He thereupon sounded his gong, as contended, and started the car, only to discover, a moment later, that he had run over the child. This child, as appears from plaintiff’s evidence, had taken a position upon the north fender of the car and on its east side, and was in that position when the ear started. The story of the accident is very harrowing, and is not conducive to the exercise of cold judgment.
The plaintiff specified six grounds of negligence. They were all reducible to the general allegation that Fallon was negligent in failing to discover the child in his perilous position, and in failing to protect him in such position, in that he started his car without sounding the gong, and without looking to see whether anyone was in front of his car. The only substantial
It will be noted that the tender years of the child eliminate the question of contributory negligence. So far as the negligence of Fallon is concerned, in failing to discover the perilous position, the question of decedent’s age is not controlling. The measure of duty of care to discover the peril and to protect the party exposed thereto was precisely the same as it would have been if the injured party had been adult. The fender in question was so attached to the end of the car that it could be extended forward or pushed backward under the car. At this time, the fender extended forward about 18 inches. Just what its position was underneath the car is not clear from the record, nor is there any showing of the exact place on the fender taken by the child, except that it was on the east side. How far back or underneath the child was, does not appear. The witness was too far away to make accurate judgment in that regard. There were no other children about the ear or on that part of the street at that time, nor had this child ever been in and about a street car before. Fallon had not seen the child in the vicinity of the car before it started.
It was the duty of Fallon to' keep a. lookout, and to discover all discoverable persons who were in front of his car or in close
Innocent as the injured party was in this case, and though sorrowful and heart-rending the result, the measure of the duty of discovery of his peril, imposed by the law upon Fallon as motorman, was not different than it would have been if the injured person had been a responsible and willful trespasser.
In view, therefore, of the special findings of the jury, that Fallon did not see the peril of the injured person, and that he had not failed, as contended, to sound his gong, we are constrained to hold that the trial court properly entered a judgment of dismissal of the petition, upon the special findings.
The second ground of such proposed amendment set up the violation of another ordinance, which required the street car company to provide for its cars fenders of certain standards.
What we have already said as to the first ground is also applicable here, as regards the discretion of the trial court. There is a further reason which is quite controlling. This action was brought as a joint action against a master and servant, and was predicated upon the negligence of the servant, for which the master was necessarily liable. Such joint action could not be predicated upon any other negligence than the negligence of this servant, Fallon. If it be true, therefore, that the street railway company had failed to provide the kind and standard of fenders which the ordinance of the city required, this was not a negligence of Fallon’s. He had no control over his employer in that regard, and had no responsibility or blame for the failure. Inasmuch, therefore, as the plaintiff was prosecuting a joint action against master and servant for the negligence of that
Other assignments of error are predicated upon the rejection of certain offered evidence. If the ruling of the court had been otherwise in each case, and the evidence had been permitted to stand, it could have no effect upon the result. We have no need, therefore, to discuss them. For the reasons indicated, the judgment below is- — Affirmed.