170 Iowa 467 | Iowa | 1915
The defendant operates a street railway system in the city of Des Moines. The plaintiff carries on a wholesale fruit and produce business in the same city and makes use of an auto truck for the delivery of goods sold to local retail merchants. On January 12,1912, the plaintiff, having occasion to deliver certain goods at the store of Moon Brothers, which fronts south upon Easton Boulevard, one door west of its intersection with East Twenty-fourth Street, sent an employee, one Hablitz, to perform that service. Along the middle of the boulevard in front of Moons’ store is the track of the defendant’s Walker Street line. This line ends at Twenty-fourth Street, where cars coming from the west on the boulevard make the turn for their return trip by the use of a “Y,” which extends north the necessary distance on
“If I had known I was going to hit there, I could not have driven up a little farther; the snow was too deep. I won’t say it was three feet, but deep enough-so I could not get in there. I understand these motors and what they can do, so I did not try it. I was not seared of the car hitting*472 me and wrecking me, it would take only five minutes to unload the stuff. I made no attempt to go farther in, for I knew I could not get in any further. ’ ’
There was evidence on the part of the appellant denying the existence of any serious obstruction of the street by snow and indicating that the truck could have been driven nearer the curb, but the conflict is not for this court to decide. In no aspect of the evidence can we say it shows conclusively a want of care by the driver. As already suggested, he was rightfully in the street and engaged in the performance of a lawful act which was, at most, a matter of a few short minutes. If, in view of the condition of the street, he used reasonable care to so place his truck as not to unnecessarily obstruct the use of the public way by others, including the railway company, and was proceeding promptly to discharge his load, it would be a most arbitrary holding to' charge him with negligence as a matter of law, even though he knew that his vehicle did not wholly clear the street car track. The court did not err in submitting the question of contributory negligence to the jury.
Quite parallel in point of principle is the recent Massachusetts case of Donovan v. Ry. Co., 99 N. E. 956. In that ease, the plaintiff, driving a delivery wagon, backed up in front of a store and was in the act of unloading goods, when the wagon was struck by a passing street ear. Upon appeal from a verdict by the plaintiff, it was argued, as it is here, that the driver ivas negligent, but the court .said:
“It could not be ruled as a matter of law that the plaintiff was not in the exercise of due care. He had the right to back his wagon up to the store as he did and he testified before doing so, ‘I looked up and down the street for a ear, but saw none.’ It was for the jury to say whether, in view of the frequency with which cars came along the track, he should have looked again before or while attempting to unload*473 the barrel, or whether he did all that could be done to avoid an accident after he heard the gong or saw the car. ’ ’
There is nothing in any of our cases which requires a different conclusion on our part, and the rule which we here apply is in strict accord with approved principles governing the use of public streets and highways.
“It was the duty of defendant’s employes, in charge of said car, to exercise ordinary care to determine whether or not plaintiff’s auto truck was in a place of danger, and to avoid the injury thereto. If said employes, or either of them, knew, or in the exercise of ordinary care should have known, that plaintiff’s auto truck was in a place of danger, in time to stop said car and avoid the injury to said auto truck, and failed to so stop the car, you would be justified in finding the defendant guilty of negligence.”
This, it will be readily seen, is not a statement of the last fair chance principle, but rather a clear and explicit statement of the duty of the persons in charge of the car to keep proper lookout as they moved through the street to avoid collision with other persons or vehicles rightfully being or moving upon the public way. That there is a duty to keep such lookout and to avoid injury to others whom the company’s servants see or ought to see in a place of danger and that failure in this respect is negligence is too thoroughly settled to permit argument or citation of cases. But see Barry v. Ry. Co., 119 Iowa 62, and the later cases in which that precedent has since been cited and followed.
IY. Numerous errors are assigned upon rulings admitting and rejecting testimony. Of these, we mention the following :
We shall not extend this opinion to consider the other assignments. So far as they fairly arise upon the record, they are sufficiently covered and ruled by the conclusions we have already announced. No good reason is shown for setting aside the verdict, and the judgment rendered thereon will be —Affirmed.