141 Iowa 689 | Iowa | 1908
The accident in question occurred on July 15, 1905, on Ingersoll Avenue, in Des Moines. Ingersoll Avenue runs east and west at the point of the accident. The defendant owns the fee of the right of way on which-it operates its street car line. On each side of this right of way is laid out a public street, forty feet in width. These two streets and defendant’s right of way between constitute Ingersoll Avenue, for all practical purposes. A narrow ’ street, known as “Orescent Drive,” intersects • this
One witness fixed the point of the accident as five to ten feet east of the platform. Others fixed it at a greater distance. Before the view of the deceased was obstructed by the west-bound car, the east-bound car had come into view at some distance away. One witness, who was a passenger on the west-bound car, testified that when the deceased passed behind that car the east-bound car must have been from seventy-five to one hundred, and possibly one hundred and fifty feet away. The distance between the two car tracks was about five feet. There is evidence •tending to show that the east-bound car was traveling at a rate of twenty-five miles an hour; whereas, the ordinance permitted no greater speed than twelve miles an hour. There was also evidence tending to show that the plaintiff was carried on the fender for some distance before the car
After a statement of the issues, the court presented its instructions in paragraphs numbered from 1 to 19, inclusive. The first six are ' as follows:
(1) The burden of proof is upon plaintiff to establish by preponderance of the evidence each of the following propositions: First, that the deceased, Edith McDivitt Lawson, was struck and injured by the defendant’s car about the time, at the place, and substantially in the manner alleged in plaintiff’s petition; second, that said decedent was not guilty of negligence causing or contributing to her said injury; third, that the defendant was guilty of negligence substantially as alleged by plaintiff and hereafter in these instructions more fully specified; fourth, that said injuries so received by decedent were the direct and approximate result of the negligence of the defendant; fifth, that the estate of decedent has been damaged in some amount thereby. If you find affirmatively as to each and all of the above propositions, then, your verdict will be for the plaintiff. If you fail to- find affirmatively as to any one of the above propositions, your verdict will be for the defendant.
(2) As has been stated in the previous instruction, the burden of proof, is upon the plaintiff, and before she can recover she must establish by a preponderance of the evidence that the defendant was guilty of one or more of the particular acts of negligence charged in the plaintiff’s petition, and that such negligence was the proximate and direct calise of the injury which the plaintiff claims to have sustained on account of the injury and death of decedent. In determining whether the defendant was or was not guilty of the negligence complained of as alleged in plaintiff’s petition, you will consider only the negligence alleged pertaining to the stopping or movement of the car in question, after decedent was seen by the motorman in a place of danger, and whether such negligence was the proximate cause of the injury resulting in'the death of decedent.
(3) An accident may happen and an injury ensue thereby without any negligence on the part of any one connected therewith. If you find from the evidence that the*695 injury and death of decedent was -the result of mere accident or misadventure, and that the same occurred without any fault, negligence, or failure on the part of the defendant company or its employees to exercise reasonable care and caution in the discharge of its duty in the operation of its car, then the plaintiff can not recover, and your verdict will be for the defendant.
(4) The undisputed evidence in this case shows that the deceased approached the railway track of defendant,' and, after having so approached the railway track of defendant, waited for the west-bound car to> pass her, and that, after such car had passed, decedent immediately proceeded across the north track, and the intervening space of almost five feet between the north and south tracks, and stopped in front of an east-bound car on the south track, there passing, and was struck by said car without taking any precautions to avoid the accident. You are instructed as a matter of law that this action of decedent would constitute negligence, and plaintiff can not recover unless you find as hereinafter instructed. The only question therefore which you have submitted to you for consideration is whether or not the defendant’s employees in charge of the east-bound car, which came in contact with the deceased, were guilty of the negligence charged in failing to avoid the injury which resulted in the death of decedent after the deceased stepped from behind the west-bound car and onto the south track of defendant, and she was seen by the motorman in a position of danger. In this connection the only allegations of negligence which you will consider are:
(5) In relation to the care required of the defendant company, you will only hold it to the exercise of reasonable care, which consists in doing everything which a person of ordinary care and prudence would do, and omitting to do everything which a person of like care and prudence would omit to do. Negligence is defined to be the omitting to do something that a reasonably prudent person would do, or the doing of something which such a person would not do. Under the circumstances of this ease, if you find from the evidence that the defendant, by its ■ employees, omitted to do something that a reasonably .careful and prudent person would do, or did something that such a person would not do, as to the movements or stopping*696 of said car after decedent was seen by the motorman to be in a place of danger, you would be warranted in finding the defendant guilty of negligence; and, if you so find, and if you also , further find that such negligence was the proximate cause of the injury and death of the decedent, your verdict will be for the plaintiff. If, on the other hand, you find that the motorman, Lewis, in operating the car in question which caused the injury and 'death of the decedent, did everything which a reasonably prudent person would have done at the time of the accident in stopping the car in question, then you would be warranted in finding that the defendant was not guilty of negligence, and, if you so find, your verdict should be for the defendant.
(6) You have been heretofore instructed, gentlemen, that the decedent was negligent in going upon the track in front of the east-bound car, which struck her; but you are further instructed that, while the law holds that plaintiff can not recover on account of the contributory negligence of decedent in stepping in front of the east-bound car in the manner in which she did, yet if, after the motorman saw her in a place of danger or about to step- upon the track in front of the approaching car, he negligently failed to stop said car within a reasonable time or distance under the circumstances shown by the testimony, and such failure was the direct and proximate cause of the injury which resulted in the death of decedent, then your verdict will be for the plaintiff.
From an examination of instruction 1, it will be observed that the jury was instructed, expressly, that, if it failed to find that the decedent was not guilty of contributory negligence, the verdict must be for the defendant. Instructions 4 and 6 expressly stated to the jury that the decedent was guilty of contributory negligence. This presents the alleged contradiction of which appellant complains. It is contended by appellee that instructions 4 and 6 expressly state to the jury that the plaintiff may recover noth withstanding contributory negligence, and this contention is correct; but this does not eliminate the contradiction in the instructions. Appellee contends that the
Our opinion is that, on the whole record, there is sufficient evidence to go to the jury on the question of contributory negligence.
The judgment below is reversed, and cause remanded for a new trial. — Reversed.