177 Iowa 406 | Iowa | 1916
This action is brought to recover damages resulting from a collision between one of defendant’s street cars and a wagon in which plaintiff was riding. Plaintiff claims that he was thrown from the wagon by the impact of the car and sustained painful injuries. He also asks to recover the value of a horse killed in the accident. ■
The accident out of which-this suit arises occurred on Beaver Avenue in the city of Cedar Eapids, 30 or 40 feet west of the intersection of Twenty-second Street with Beaver Avenue. Beaver Avenue runs east and west. Defendant’s railway track extends along the center of the street east and west, crossing Twenty-second and Twenty-third Streets. Twenty-second and Twenty-third Streets run north and south, and intersect Beaver Avenue. The northern terminus of these streets is at Beaver Avenue. Beaver Avenue,, west from Twenty-second Street, is paved, 'and so paved that it can easily be crossed at the intersection of Twenty-second Street. Beaver Avenue, is not paved east of Twenty-second Street. All the travel on Beaver Avenue east of Twenty-second Street is on the south side of the avenue, south of defendant’s'track. At Twenty-third Street, there is no provision made for crossing the track from the south.
On the 22d day of December, 1913, at about 5:30 in the evening, the plaintiff came from the south on Twenty-third Street to Beaver Avenue, turned then onto Beaver Avenue, and proceeded westward along the south side of Beaver Avenue over this dirt road, until he reached Twenty-second Street. There he entered upon the pavement. Instead, however, of turning directly across the street, as he might have done on Twenty-second Street, to the north side of the street, and pro
He brings this action to recover damages, and alleges that the damages sustained by him were due to the negligence of the defendant, and the negligence which he charges caused the injury is: First, that the defendant ran and was running its-car, at the time of the collision, at a high and dangerous rate of speed,, without due regard to the safety of the public using the avenue. Second, that it failed to give any warning of the approach of the car by gong or bell, either as it approached Twenty-second Street, over which it had to pass in reaching the point of collision, or before reaching the point of collision. Third, that the defendant’s motorman discovered plaintiff, or, in the exercise of ordinary care, should have discovered plaintiff’s peril, in time to have avoided the injury, but failed to exercise such care.
The answer of the defendant was: First, a general denial; second, that the plaintiff was guilty of negligence directly contributing to the injury, in that he was, at the time, engaged in crossing the track in a manner and at a place prohibited by the ordinances of the city.
The cause was submitted to the jury on the first two grounds of negligence alleged. The doctrine of last clear chance was not submitted. The jury returned a verdict for the plaintiff, and, judgment being entered thereon, defendant appeals.
The defendant presents four grounds for reversal: First, in overruling defendant’s motion for a directed verdict; second, in refusing to submit to the jury instructions asked by the defendant; third, in the giving of instructions to the jury
The motion for a directed verdict was predicated mainly on the proposition that the plaintiff was guilty of contributory negligence, in that he was, at the time, in the act of violating an ordinance of the city, both in what he did and in the manner of its 'doing, and that this contributed to the injury of which he complains, and this, therefore, precludes any right of recovery as against the defendant. The sixth ground of the motion for a directed verdict seems to be broader than the mere allegation of contributory negligence, and may have been intended to cover the whole case; but the argument presented in support of this claim narrows this assignment to the one question. This we conceive to be the main ground of defendant’s complaint under this assignment.
The question then is: Was the plaintiff, at the time of the collision, or immediately preceding the collision, in the act of violating an ordinance of the city of Cedar Rapids ?
The record discloses what plaintiff was doing, as follows: He came down Twenty-third Street from the south. When he reached Beaver Avenue, he turned to the left, and proceeded along the south side of Beaver Avenue to Twenty-second Street. It is not seriously contended that he did not have a. right to travel on the south side of Beaver Avenue as far, at least, as Twenty-second Street. The record discloses
He did not turn and cross at the intersection of Twenty-second Street and Beaver Avenue when he reached the pavement. This is what the defendant says constituted a violation of the ordinance precluding recovery, under the rule hereinbefore stated.
The sections of the ordinance relied on, so far as related to the matter here in controversy, are as follows:
“Section 367. 6. The driver of a vehicle shall turn to the right when meeting another vehicle, and shall at all times travel on the right-hand side of the street, as near the curb as possible.
“Section 371. 10. The driver of any vehicle shall, before stopping, turning or changing the course of said vehicle, first see that there is sufficient space to make such movement in safety, and shall give a visible or audible signal to the crossing officer, or to the drivers of vehicles following,
“Section 374. 13. The driver of a vehicle, in crossing from one side of the street to the other side thereof, shall turn to the left, so as to head in the direction in which traffic is moving.
“Section 402. 41. Street ears shall have the right of way between cross streets over all other vehicles, except as provided in Section 35. ' 1
“Section 421. 60. Any person who shall violate any provision of this ordinance shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not to exceed $25, or shall be imprisoned not to exceed 7^ days.”
“Nor do we think that appellant’s earnest contention that plaintiff was guilty of contributory negligence as a matter of law can be sustained. Plaintiff was rightfully upon
Here we might remark that, in the consideration of cases bearing upon this question, a distinction must be kept in mind between the right to cross and the care required in attempting to cross at a point other than at .intersection. In this case, as in the Watson ease, the plaintiff had a right to cross the street at any time or place within the public highway. He was not bound to cross at'the intersection of Twenty-second Street. He was required, in either case, to exercise reasonable care and caution for his own safety while in the act of crossing, but was not required to exercise more care and caution than the average man of ordinary prudence may be expected to exercise in either case.
It must never be lost sight of, in considering the relative rights and duties of a street railway company; occupying the streets for its own purposes, and the rights and duties of a pedestrian or those traveling loosely upon the street, that the railway company holds its right in common with the general traveling public. Each has a right to travel upon the street, but each must exercise his right in due recognition of, and with due regard to, the right of the other. Each is required to be watchful in the exercise of his right, to the end that he may not impose a greater burden or peril upon the other than a fair exercise of his right imposes.
It is further said in the Watson ease, quoting from page 321:
“Subject, of course, to due regard to the rights and safety of others, a traveler may walk or drive upon any part of the highway and cross the same from side to side, wherever the same is convenient for his purpose.” -
This rule does not impinge upon the right of a city, by proper ordinances, within proper limits, to direct the travel-upon its streets. The city is given the control of the public streets within its boundaries; and, within proper limits, and with due regard to the convenience and safety of the traveling
We reach the conclusion, therefore, that, when the plaintiff reached Twenty-second Street, he was not, as a matter of law, guilty of negligence in not turning immediately to the left at the intersection, and in not passing over the intersection, to the north side of Beaver Avenue.
Our attention is called to McCormick v. Ottumwa R. & L. Co., 146 Iowa 119. The facts in that case differ from those presented here. In that case, the plaintiff drove upon the track without looking back to ascertain whether a car was coming or not, without listening and without taking any precaution whatever to know if there was a ear coming.
Unless the law positively enjoins upon one the duty to do, or the omission to do, a particular act, negligence is a question of fact, into the determination of which many circumstances and conditions are interwoven one with the other. This court has uniformly adhered to the doctrine that fact questions are for the jury, and if, upon any reasonable theory of the circumstances shown or admitted, honest and fair, men searching for the truth may differ as to the conclusions to be reached upon the facts disclosed, the finding of the jury is conclusive upon this court.
The jury has found against the defendant upon this question. We have no disposition to interfere with their finding. Our reading of the record rather confirms us in the correctness of their finding. In passing, we might say that the evidence in this record is such that the jury might well find that the defendant, as it approached this crossing, was proceeding at a high and dangerous rate of speed; that it gave no warning of the approaching car, either as it approached Twenty-second Street or the point of collision; that' the plaintiff, from his viewpoint, acting as a reasonably prudent man, might well have concluded that he had ample time to cross the street in safety before the arrival of the car at the point at which he attempted to- make the crossing. He looked and saw the car at a point wheri, if it were proceeding
This brings us to a consideration of the second error assigned, in which the defendant charges that the court erred in refusing to give instructions asked by defendant. No good purpose can be served by setting out these instructions. The complaint is made of the refusal of the court tO' give Instructions 1, 2, 3, 4 and 8 asked by the defendant.
Instruction 1 requests the court to instruct the jury, upon the whole record, to return a verdict for the defendant. For the reason hereinbefore stated, this was rightly refused. All these instructions contain the thought that the plaintiff in what he did, in attempting to cross Beaver Avenue at a point other than the intersection, was violating the city ordinance hereinbefore set out, and was, therefore, guilty of negligence ; that, if they found that the plaintiff did these things and the doing contributed to his injuries, he could not recover.
Instruction 2, as requested, would say to the jury that the plaintiff, after passing the intersection of Twenty-second Street and Beaver Avenue, was guilty of a violation of the ordinance in turning to the right to cross from the left-hand side of Beaver Avenue to the right-hand side, and that, in driving across Twenty-second Street onto Beaver Avenue, he was guilty of negligence in that he was then on the wrong side of the street, although he proceeded immediately to right himself by an effort to get on the right side of the street.
Instruction 4 tells the jury that the defendant’s act, in turning to cross the street at a point where he did, was unlawful, and, if it contributed to the injury, he could not recover.
Instruction 8 involves the same thought.
These, we think, were all rightly refused, for the reasons hereinbefore stated.
Upon these propositions, we have to say that the court did not give the stereotyped definition of negligence. The court, however^ in its eighth instruction, said:
“A person either walking or driving a vehicle about to go upon or across a street car track, is bound to use care and to exercise his senses to ascertain that there is no car approaching which in the exercise of ordinary care would be likely to come in contact with him while attempting to cross the same.”
And it supplemented this in the ninth instruction by saying that he could not depend upon nice calculations as to his safety and place himself in apparent' danger:
“But a mere error of judgment on his part, if he was exercising reasonable care for his safety, does not necessarily establish negligence on his part. But if the plaintiff, when about to cross the car tracks, failed to look and use his senses in ascertaining whether he could safely cross before the approaching ear, could, under ordinary circumstances, reach the place of crossing, then the plaintiff would be guilty of contributory negligence, and your verdict should be for the defendant.”
And in a further instruction it told the jury that the plaintiff must establish by a preponderance of the evidence that he was acting as an ordinarily prudent and careful person should act in attempting to cross the car tracks in the
These instructions are not drawn with technical nicety, but they convey to the jury the thought that the burden was on the plaintiff to show, before he could recover, that he was acting as an ordinarily prudent and careful person would act, in attempting to cross this track; that this involved the use of his senses — a duty to look and listen — to ascertain whether he could cross in safety before attempting to cross; and the jury was told that he could not recover if he failed to establish this, or if it appeared that, at the time of the injury, he was not exercising ordinary care for his own safety. The court did not, in any-specific instruction, define what constitutes ordinary care; it did not, in any specific instruction, define what in law constitutes negligence; but it did tell the jury that he could not recover if he was not exercising that care for his own safety which an ordinarily prudent and careful person would exercise under like circumstances, and it did tell the jury that he was guilty of contributory negligence if he did not exercise such care.
It is the duty of counsel' to assist the court, to the end that a fair presentation of the case may be made to the jury whose duty it is to determine ultimately the rights of the parties. A specific request for more definite instructions as to what constitutes negligence and ordinary care, if asked for, would undoubtedly have been given, and, assuming even that the instructions were not as full as they might have been made upon this point, we are not now disposed to reverse the case upon that ground, for the reason that the complaining party failed to make any request to submit any fuller instructions to the court for the guidance of the jury than were given. But, however that may be, we are satisfied that the instructions, as given, though not drawn with technical nicety, were full enough to enable the jury to know what the law is, and what their duty was in the premises, SO' far as this controversy is concerned.
It is contended that the court erred in giving the fourth and fifth instructions. It must be borne in mind that the court was not, in these instructions, stating abstract propositions of law so full and comprehensive as to cover every conceivable condition or relationship that might arise touching the use of the streets. The instructions were given with reference to the particular matter then before the jury, and were intended to guide them in the particular matter submitted to them. Instructions 4 and 5 read as follows:
“No. 4. You are instructed, that drivers of teams or vehicles of any kind have the right to use any part of the street in passing along the same, but street cars shall have the right of way between crossings over all other vehicles.
“No. 5. The law provides that the driver of a vehicle shall turn to the right when meeting another vehicle, and shall at all times drive on the right-hand side of the street,
Instruction 5 is simply a restatement of the provisions of the ordinance. It might as well have been omitted as given. It serves no useful purpose in the ease, under the facts disclosed in this record, but in no way can it be considered prejudicial to the defendant. It simply recites the provision of the ordinance which was in evidence and put there by the defendant. It recites it without comment, and without explanation, and, if prejudicial, was prejudicial to the plaintiff. The complaint is that the court failed to tell the jury that a violation of the ordinance referred to in Paragraph 5 of the instructions would constitute negligence.
The last ground of complaint is the overruling of defendant’s motion for a new trial. This motion raised the questions hereinbefore discussed, and what we have said before presents the full defense' to the action of the court in overruling the motion.
On the whole record, the cause is — Affirmed.