172 Iowa 527 | Iowa | 1915
The negligence charged against the defendant street car company was: “That the defendant’s employee in charge and who had the management and control of the car that ran into plaintiff’s automobile truck was guilty of gross carelessness and negligence in running said car at a great rate of speed and in failing to stop said caías soon as by the exercise of reasonable care it could have stopped after the said employee saw or by the exercise of reasonable care could have seen the danger of said collision and thus avoided the injury.”
This was amplified somewhat by a recitation of evidentiary facts to the effect that, after plaintiff’s driver had stopped the automobile which he was driving upon one of the defendant’s tracks, the motorman in charge of the street car failed and refused to stop or in any way lessen the speed of
He testified that- the street ear was running at the rate of 30 miles an hour; he also testified, as an expert motorman having experience, that a ear going at 20 to 30 miles per hour could be stopped within 3 car lengths, or approximately 90 feet. This witness was corroborated to some extent by other testimony, and other witnesses stated that the automobile was standing still, waiting for the east-bound ear to pass, for some little time before it was struck by the west-bound car. Other witnesses testified that the street car was running at from 12 to 15 miles per hour, and some of the testimony indicates that it was going at even, less speed. The motorman testified that he was going about 8 miles per hour and that, at this rate of speed, the car could not have been stopped short of 100 feet. There was some testimony that the truck driver heard no ringing of bell or sounding of gong upon the street car,, and
Defendant’s witnesses gave quite a different version of the affair. The motorman testified:
‘ ‘ The motor truck, when I first saw it, was just east of the drug store, just a few feet fr,om the south curbing of Thirty-fifth Street; that is, it would be the south side of the drug store, the curbing that runs east and west.’’ Q. “Which way was he headed when you saw him?” A. “He was headed south.” Q. “Just tell the jury what happened as your ear came up to that street intersection.” A. “Well, this time this man with the motor truck was going at a slow rate of speed towards the track. When he got within about 12 feet of the track, his car slowed down and apparently he was going to stop. The ear did come almost to a stop and I figured that he was going to stop there and let me go by, and I released my air on my car, and of course she naturally went a little bit faster. - And he kept coming on to the track, and I saw that I was going to hit him and I applied the brakes the second time, but I was too close to do any good. ’ ’ Q. “When you first saw this man, did you put your brakes on then?” A. “Yes, sir.” Q. “And then when he came towards the track and stopped, as you say about 12 feet away, apparently came to a standstill, was it then that you released your brakes?” A. “Yes, sir. ” Q. “And then when he started up again, did you put your brakes on again then?” A. “Yes, sir.” Q. “What do you call it?” A. “I give it the emergency; that is, applying the brakes to their full extent.” Q. “Was that the quickest way to stop your car?” A. “Yes, sir; that is the quickest way, and it is the only way I had time to do anything. My car and the truck collided. My car pushed the motor truck about 10 feet. This motor truck, at the time of the collision, was on the west side of Thirty-fifth Street. He came straight south from the curb line.”
It was for the jury to determine which version of the acci
“If the motorneer in charge of the car of the defendant west bound saw, or by the exercise of reasonable diligence could have seen, the driver of the auto truck of plaintiff approaching the crossing about to use the same, it was the duty of the motorneer to warn the driver of the auto truck of his approach by ringing the bell, in time to have enabled the driver of the truck, in the exercise of reasonable care on his part, to have stopped his truck before going onto the tracks of defendant ; and if the motorneer of the defendant, after having rung*533 his bell, if he did ring his bell, saw that the driver of the auto truck paid no attention thereto but continued to drive his truck forward toward the tracks of the defendant, regardless of the warning given by the motorneei’, if he gave any warning, it was the duty of the motorneer to stop his car, if, by the exercise of reasonable diligence on his part, he could have stopped the car, and avoided the collision; but, if, by the exercise of reasonable diligence on his part, the motorneer could not stop his car after he saw the driver of the auto truck paid no attention to the said warning given and was about to go upon the tracks of defendant, the motorneer was not negligent.”
IY. Complaint is made of the failure of the court to give certain instructions asked. It is enough to say, in answer to this, that those which were correct were substantially given by the court in its charge. Indeed, Instruction No. 9 asked by the defendant is substantially the same as No. 6 given by the court, of which defendant complains. The substance of No. 5, as asked, was given in No. 6; although it referred more directly to defendant’s testimony as to how the accident occurred than did the one given. However, the jury could not have found for plaintiff under Instruction No. 6 without disregarding or disbelieving defendant’s testimony as to how the accident occurred. On the whole record, we discover no error of which defendant may justly complain. The judgment must, thérefore, be and it is — Affirmed.