166 Iowa 85 | Iowa | 1914
The plaintiff’s intestate was struck and killed by one of the defendant’s trolley cars on a public crossing in Webster countjL He had been visiting his mother, who resided a short distance west of the crossing, and was intending to take passage upon said car for his home in Pt. Dodge. The ear was one employed in local traffic, and was accustomed to stop at all highway crossings to take on passengers. His mother and brother walked with him in the direction of the crossing, and stopped on the west side of the track until they discovered the car approaching from the south. The shed or platform where the passengers boarded the ears at that place wa§ on the east side of the crossing and north of the highway. The country at this point is quite level, and the view along the track to the south was unobstructed for a distance of substantially a mile. The evidence for the plaintiff tends to show that when the car was still some six hundred or eight hundred feet to the south deceased, who had about one hundred and sixty feet to go, signaled the car to stop, and started on a run to make the crossing, and was struck while
The motorman, testifying as a witness, says he saw the three persons, two men and a woman, standing on the west side of the track for a distance of practically a mile, and saw the deceased start and run toward the crossing, but says he did not see him signal. He adds, however: “It was our custom to stop at that crossing if any one was there. When I discovered Mr. Swenson running toward the track, the car was going about twenty miles an hour. There was an automatic air brake on the car. The brakes and controllers were in good working order, and the equipment was in good order. I knew if the man did not stop, he wasn’t going to get across. When I saw him running I believed he was running into danger.” It also appears or there is evidence to the effect that the emergency brake was not applied until imme-' diately after an alarm whistle was sounded, and that such alarm was not given until the car was “at the south cattle guard or right on the crossing.” .
The principal question we have to consider is whether, after giving the plaintiff the benefit of the most favorable con
tible in support of his alleged cause of action, it still presents a case upon which the deceased must he held chargeable with contributory negligence as a matter of law. Under the conceded facts the question of defendant’s duty toward the deceased, as well as the duty of the deceased with respect to his own safety, presents a twofold aspect. In one he is to he considered from the standpoint of an ordinary traveler on the public highway, and in the other as a person approaching the railway company’s stopping place or station to take passage on an approaching car which he has signaled to stop. If we consider the ease from the first point of view the intestate and the railway company had equal rights in the use of the crossing. This is not inconsistent with the other rule that when a traveler and a railway ear approach a crossing so nearly at the same time that as a reasonably prudent person the traveler knows, or ought to' know, he .cannot go ahead without imperiling his safety, he is bound to yield precedence to the ear. This is not because his right to cross is less regarded by the law, but because of the physical fact that both cannot use the place of crossihg at the same time, and it is hut reasonable care that he give way to the ear, the movement of which is less readily controlled than his own. Gray v. R. R. Co., 143 Iowa, 276; Gray v. R. R. Co., 160 Iowa, 1; Earle v. Traction Co., 64 N. J. Law, 573 (46 Atl. 613).
The mere fact that a traveler as he approaches a crossing sees a ear coming in his direction does not, as a matter of law, cast upon him the duty of waiting for it to pass, for if the car is at such distance that he may reasonably expect to cross in safety before its arrival, he may do so without becoming chargeable with want of due care, nor does he as a matter of law assume the risk of mistake in his calculation if by reason of the approach of the car at an excessive or negligent rate of speed a collision occurs. Patterson v. Townsend, 91 Iowa, 725; Bruggeman v. R. R. Co., 147 Iowa, 204; Adams v.
It is also a well-settled principle in all eases where the question of negligence is involved that one party cannot, by his want of care, put the other in danger and then excuse
In this case as we think there can he no question there was evidence to justify a finding of the defendant’s negligence. Indeed it would take a most arbitrary court or reck-
In Wolf v. Suburban Ry. Co., 50 Or. 64 (85 Pac. 620, 91 Pac. 465, 15 Ann. Cas. 1181), a traveler on the highway
In Hamilton v. Ry. Co., 201 Pa. 351 (50 Atl. 946), as plaintiff came to the track, he saw a car coming at a distance of two hundred and thirty feet. He noticed that the motorman was not at the brake, and was looking in another direction, yet he drove ahead and was injured. The court held that the question of contributory negligence was for the jury, saying, among other things, that plaintiff was “not required to act upon the presumption that the motorman’s inattention to his duties when leaving Fifth avenue would continue until the High street crossing was reached. The opposite conclusion was the reasonable one, and would justify the plaintiff in proceeding to cross the track. ’ ’ In the case of a street railway it has often been held that the motorman ought to have his ear under control as it passes over a crossing. Ry. Co. v. Gentry, 147 Ind. 408 (44 N. E. 311, 37 L. R. A. 378, 62 Am. Rep. 421). The reason for such rule is equally applicable to the operation of an interurban car which is run to accommodate local travel, stopping at all public crossings where passengers may be waiting, and this reasonable requirement is a material consideration where alleged contributory negligence is relied upon by the defendant.
In Traction Co. v. Jacobson, 217 Ill. 404 (75 N. E. 508),
lie was bound to exercise a reasonable judgment in view of all the circumstances; and the court in passing on the motion [for a directed verdict], was required to consider all the evidence, including the distance of the car from the wagon, the rate of speed, and all the circumstances. We cannot say that in so considering it the evidence necessarily led to but one conclusion; but we think the question whether, under all the circumstances, appellee believed, upon reasonable grounds, that he had time to get across the track before the car would reach him was proper to be submitted to the jury.
The Supreme Court of Kansas, speaking of the duty of a traveler about to cross the track of an electric railway, says:
The requirement of the law that a man shall look and listen means no more than that he shall observe and estimate with reasonable accuracy his distance from the car and the speed of its oncoming. He is then to make a calculation and comparison of the time it will take ... to cross the track, ■and if, under the same circumstances, a reasonably prudent person would attempt to cross at a given rate of speed, he will not be negligent in doing so. It is true that a reasonably prudent man may be mistaken or be deceived, but if so, and if his conclusion from the facts as they appear to him be erroneous and an injury result, he is nevertheless guiltless of contributory negligence, for the law does not measure human conduct in such cases by any higher standard of care than that which such a man would exercise; and whether or not a prudent man would accept the hazard is generally a question of fact for the jury.
Kansas City-Leavenworth Ry. Co. v. Gallagher, 68 Kan. 424 (75 Pac. 469, 6 L. R. A. 344).
A jury may well say that he who crosses in front of a trolley ear provided with a motorman may assume that it is furnished with the means of stopping or reducing speed. Then there was a question for the jury in this case whether a prudent man, upon such an assumption, might not .judge it safe to cross in front of a trolley car 300 feet away, although coming at a great and illegal speed. Upon the assumption of the existence of means to reduce the speed and to stop, and of a servant employed to make use of such means, it would be absurd to say that one was bound to refrain from crossing for fear the servant would not make use of the means.
Traction Co. v. Lambertson, 59 N. J. Law, 299 (36 Atl. 101). See, also, Lawler v. Ry. Co., 72 Conn. 74, 82 (43 Atl. 545).
This court in a similar case has said:
Much is said in argument about the question whether the rule requiring a person about to cross the track to stop, look, and listen for an approaching car, and whether the rule applicable to a railroad operated by trains and steam locomotives should apply to an electric railroad. That question is not in this ease. There is no claim that plaintiff did not see the approaching car. He saw it when it was three hundred feet away from the crossing. The question is, Did he use proper care in determining whether he could safely cross the track? That was a fair question under the evidence for the- jury.
The care and caution of a pedestrian at a public crossing can be properly measured only by taking into consideration the care and caution he has a right to expect will be
If the circumstances as they reasonably appear to the traveler justify him in believing he can cross in safety, he is not guilty of negligence as a matter of law because of a mistake in judgment. Ward v. Ry. Co., 132 Iowa, 578; Powers v. Ry. Co., 143 Iowa, 434; Kern v. Ry. Co., 141 Iowa, 631.
In McDivitt v. Ry. Co., 141 Iowa, 699, we said: “One of the important circumstances is the distance of the oncoming car; and another is its speed. The distance can always be estimated with sufficient accuracy for the purposes o£ prudence. The speed, however, may be deceptive.” To the same point the court in Murray v. Transit Co., 108 Mo. App. 501 (83 S. W. 995), affirmed by the Supreme Court of that state in 135 S. W. 19, says: “A man might easily misjudge the speed of a car. or its distance from him, after straining his senses to ascertain whether he could, with safety, venture on the track, might make an honest mistake, and under an erroneous impression concerning the car’s speed ... go forward and be hurt. Whether plaintiff’s misapprehension was induced by carelessness or by a deception of the senses, or an error of judgment, was . . . for the jury.” See, also, Geist v. Ry. Co., 91 Mich. 446 (51 N. W. 1112); McVean v. Ry. Co., 138 Mich. 263 (101 N. W. 527).
The authorities, sustaining the view thus far expressed, are too numerous to attempt their exhaustive citation. We close this branch of the discussion with the citation of one other case which seems to us peculiarly appropriate and authoritative. In Railway Co. v. Van Steinburg, 17 Mich. 99, the plaintiff was proprietor of a hotel near a railroad station at which he was in the habit pf meeting trains and
Negligence, as I understand it, consists in want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury. ' The inquiry is therefore one which must take into consideration all these circumstances, and it must measure the prudence of the parties’ conduct by a standard of behavior likely to have been adopted by other persons of common prudence. Moreover, if the danger depends at all upon the action of any other person under a given set of circumstances, the prudence of the party injured must be estimated in view of what he had a right to expect from such other person, and. he is not to be considered blamable if the injury has resulted from the action of another which he could not reasonably have anticipated. Thus the problem is complicated by the necessity of taking into account the two sets of circumstances affecting the conduct of two different persons, and is only to be satisfactorily solved by the jury placing themselves in the position of the injured person, and examining those circumstances as they then presented themselves to him, and from that standpoint judging whether he was guilty of negligence or not. It is evident that such a problem cannot usually be one upon which the law can pronounce a definite sentence, and that it must be left to the sifting and determination of a jury.
If it be true, as Judge Cooley says, that the prudence of the party injured must be “estimated in view of what
Next let us refer briefly to the right of .the deceased as a person intending to board the car and giving notice thereof to the defendant’s servants by proper signal. This
We repeat, however, that we are not prepared to hold, and do not contend, that the deceased had acquired the right to the care due a passenger, but that, when he made known to the motorman his desire to get on board, and was apparently making his way. to the place where he would be expected to take the ear, it became the duty of defendant’s servants to operate the ear with reasonable regard to such fact and exercise all reasonable care to avoid injuring him.
Finally, even if we should assume that deceased was negligent, the case is quite clearly one for the jury upon the
The admitted facts in the case now before us require no elaboration or discussion. Their mere statement is all the argument needed to bring the case within the rule. The motorman did see the deceased, recognized his peril, “knew he was not going to get across if he did not stop” and saw that he did. not stop. There was evidence tending to show that this discovery was made in ample time to stop or to materially decrease the speed, and it is fairly shown that' no check was applied until practically the very instant of collision. As one witness puts it, two steps more would have put the deceased out of danger, and the slightest reduction in the speed of the "Car’s approach would have saved the man’s life. In view of the conceded facts, to say nothing of other facts which the evidence tended to show, we think the court erred in directing a verdict for the defendant. The judgment below must be reversed, and cause remanded for a new trial. — Reversed.