148 Iowa 429 | Iowa | 1910
Defendant is a corporation operating
At the time of the accident plaintiff, who is a married woman, was living two blocks south of Ingersoll Avenue and one block east of Twenty-Ninth Street. She left her home at half-past four or a quarter to five p. m. February 24, 1908, to post a letter on one of defendant’s cars, and went to the intersection of Twenty-Ninth Street with Ingersoll Avenue. A drizzling rain was falling, and she carried an umbrella to shield herself therefrom. As she approached the avenue, she could see a car passing thereon for a block and one-half south of said avenue, and she saw no cars pass the crossing which she was approaching on the day in question. The schedule time for ears at that time was every seven or eight minutes. As we have said, the day was cloudy, and it was raining, and plaintiff went to a point north of the waiting station, where she had a clear view of defendant’s track both east and west —westward for the distance already indicated. Here she stopped and looked westward for an approaching car, standing there for two or three minutes. Discovering no car approaching, she looked toward the east and discovered one approaching from that direction, which was then somewhere between Twenty-Eighth and Twenty-Ninth Streets. She immediately crossed all the tracks and waited for the west-bound car to pass her and to -stop, either to receive her letter, discharge passengers, or both. This west-bound car stopped on the west side of Twenty-Ninth Street in such position that the door, which was in the center of the car, was on the west side of Twenty-Ninth Street and just opposite the place where she was standing. As the mail box was on the rear of the car, plaintiff immediately proceeded to the east end of the car and there deposited her letter in the box. The west-bound car then
The negligence charged against the defendant is as follows:
(1) That the motorman on the east-bound car which struck the plaintiff was negligent in' that he ran his car by the car, which had stopped to discharge passengers, at a rate of speed exceeding three miles per hour. (2) That the motorman on the east-bound car was negligent in that he ran his car down a descending grade without having such car under perfect control. (3) That the motorman on the east-bound car was further negligent because he failed to sound his gong for a distance of fifty feet west of the front end of the west-bound car, until he had passed the west-bound car. (4) That the motorman on the east-bound car was further negligent in that he passed the intersection of Twenty-Ninth Street and Ingersoll Avenue at a rate of speed prohibited by the ordinance of the city of Des Moines regulating the speed of his car and limiting its speed to twelve miles per hour. (5) The motorman on the east-bound car was negligent in that he failed to exercise ordinary care in running his car at a proper and lawful rate of speed at the time the plaintiff was struck and injured by said car.
In her petition plaintiff also made the following, among other, allegations:
That on the day she was injured, and for a long
Plaintiff introduced an ordinance of the city of Des Moines prohibiting the running of cars at the point in question at a greater speed than twelve miles per hour, and also produced testimony to prove the customs pleaded by her.
Under the facts disclosed, there can be little if any, doubt of defendant’s negligence. Indeed, if there were nothing more in the case 'than excessive rate of speed, that would be enough, under the circumstances shown,
In this connection defendant asked the following instruction, which the trial court refused to give:
You are instructed that some evidence has been introduced tending to show that the bell or gong on the east-bound car was somewhat defective.' In regard to this matter, you are told that there is no charge in the plaintiff’s petition that the defendant was negligent by reason of having a defective gong on the car, or by reason of the fact that the said gong was out of repair, and you will therefore not consider the evidence with respect to the defective gong as bearing upon the acts of negligence charged in plaintiff’s petition, nor would you be warranted in basing your finding of negligence upon the fact, if it be a fact, that said bell was defective.
The instructions of the trial court on this point, so far as material, are as follows:
The plaintiff, in her petition, alleges that the defendant was negligent in the following respects: (1) In that the motorman on the east-bound ear ran said ear past the intersection of Twenty-Ninth Street and Ingersoll Avenue at a rate of speed prohibited by the ordinances of the city of Des Moines regulating the speed of street cars and limiting the speed of such cars to twelve miles an hour; (2) in that the motorman on the east-bound car ran said car at a greater rate of speed than was proper in the exercise of ordinary care, at the time when, and the place where, the plaintiff was injured; (3) in that that the motorman on the east-bound car failed to sound the gong on said car as said car approached and passed the west-bound car at the intersection of Twenty-Ninth Street and Ingersoll Avenue at the time of the accident. It was the duty of the defendant, in the operation of the car in question, to exercise ordinary care, and a failure
It seems to us that the instructions given quite as effectually eliminated the thought that the defective gong might have been considered by the jury as a part of the negligence charged as the instruction asked.
III. Peremptory instructions directing the jury to find for defendant because of plaintiff’s contributory negligence were asked by appellant’s counsel and refused. This ruling is challenged; but consideration thereof will be deferred until we reach the subject- of plaintiff’s conduct at and just 'before the time of the accident. Instructions ten and eleven given by the trial court are complained of. They read as follows:
(11) If the plaintiff, at the time and place in question, before crossing defendant’s street railway tracks, looked to the westward for an east-bound car, and there was none in sight, though she was able to and did see for such a distance -along the south track of the defendant company that a car coming from the west on s-aid track, at a lawful rate of speed, could not have arrived at the -place where she was injured at the time of her injury, nor until she would have had time to recross said south track in safety, had she not been injured, then, in that event, in the absence of notice or knowledge to the contrary, the plaintiff might, in the exercise of ordinary care, presume that a car from the westward, if approaching, would do so at a lawful rate -of speed. The plaintiff also, in the absence of notice or knowledge to the contrary, had a right to presume that the motorman on said eastbound car woul-d not run said car at a greater rate of speed than was proper in the exercise of ordinary care, and that said motorman would sound the gong on said car as required in the exercise of ordinary care. And
The objections to these are: “First, they invade the province of the jury; second, they single out the concrete facts favorable to plaintiff, and fail fo single out such facts growing out of the same transaction, as were favorable to the defendant’s theory; third, they are misleading; fourth, they give undue prominence to the facts on which plaintiff relies to recover; fifth, they do not state the law applicable to the case correctly.”
As opposed to the eleventh instruction given, defendant asked the following:
(16) The mere fact, if such you find the fact to be, that the plaintiff, before she crossed to the north side ■ of the tracks and before the west-bound car had reached the crossing and had stopped, looked to the west to see whether a car was approaching, would not, in itself, be sufficient to warrant you in finding that the plaintiff was free from contributory negligence.
(17) Unless you find from the evidence that, under the circumstances disclosed by the testimony in this case, ■a person of ordinary care and prudence would not have looked to see whether a car was approaching from the west after starting across to the north side of the tracks before the west-bound car had reached the crossing in question and before the letter in question had been mailed, the plaintiff has failed to show that she exercised ordinary care, and your verdict in this case should be for the defendant.
It also asked these instructions:
(18) Ordinary care requires one about to cross a street railway'track to use his senses to ascertain whether
(8) While the plaintiff has the right to presume the defendant, in the operation of its cars, would not be negligent, still this fact does not relieve the plaintiff from exercising care on her part, nor from using her senses of seeing and hearing for the purpose of avoiding accident, and even though you may find that the defendant was negligent in one or more of the particulars charged in plaintiff’s petition still if the plaintiff failed to exercise reasonable care on her own part for her own safety, and such lack of care contributed in any degree to her injury, she can not recover.
©ther instructions were .also asked which need not be set out, as enough have been given to disclose the points relied upon.
The tenth instruction, being the first one copied in this division of the opinion, is not vulnerable to the objections lodged against it. It does not invade the province of the jury or single out facts favorable to plaintiff. It is not misleading, nor is it incorrect as a statement of the law. It is such an instruction as should have been given, and as we read it impartially directs the jury regarding the facts to be considered in determining whether or not plaintiff was free from contributory negligence.
It is not to be understood, however, that we have in any manner relaxed the rule requiring the exercise of ordinary care by one who is about to cross or go upon a street railway track. As sadd in the Reem case, supra, “It is true, as contended by "the appellant, that it is the duty of persons in charge o f a street car to he watchful and diligent to avoid doing injury to others; but persons
We have never held that one may go heedlessly and blindly upon a street car or other track and still be free from contributory negligence. But we have never said, even in steam railway cases, that one must be constantly on guard for approaching trains or cars. The degree of care required of him is not the highest, but ordinary, care and prudence, and whether or not he exercised such care is ordinarily a question for the jury— dependent largely upon the circumstances of each particular case. To go upon the track of either a steam or street railway without exercising any care for his safety is negligence, and such negligence will prevent a recovery. But it is not necessary that one keep his eyes constantly upon the track, or that he stop and listen or do more than an ordinarily careful person would under
The words we have italicized make it the duty of a person to look and listen for approaching trains at all points in his passage, and hold him guilty of contributory negligence if he fails. This rule is too broad: First, becaiuse it usurps the province of the jury; and, next, because it requires the traveler to keep his eyes constantly upon the track for trains at all points. leading to its passage, whether the view of the track is obstructed or not. The rule, no doubt, is that if the traveler, having looked and listened without seeing or hearing an approaching train within a reasonable distance of thé crossing, is, by reason of a neglect of the railroad company to blow the ‘statutory’ whistle, run upon and injured, liability attaches therefor; and if the view of the track 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 is negligent on the part of the traveler who fails to look and listen is a question of fact for -the jury to determine from the circumstances of each particular case.
Again, in the steam railway case of Moore v. Railroad Co., 102 Iowa, 595, we said, in speaking of the duties of one about to cross a steam railway track:
The law does not declare that a person about to go upon a railway crossing must look and listen, or stop and listen, at any particular time or place, but at the time and place that the exercise of ordinary care requires. These well-recognized rules are not questioned, and we need not refer to any of the many authorities cited in the arguments. . . . An ordinance of the city provides that locomotive engines, shall not be run within the city limits at a greater rate of -speed than six miles per hour, and that the bell shall be rung on approaching street crossings and when any .person or animal may be upon the track. While these requirements did not relieve the plaintiff from the exercise of ordinary care, nor from
We discover no prejudicial error in the record, and the judgment must be, and it is, affirmed.