178 Iowa 11 | Iowa | 1916
We have repudiated the scintilla doctrine, and announced the rule that a trial judge should sustain a motion to direct whenever, considering all of the testimony, it clearly appears to him that it would be his duty to set aside a verdict if found in favor of the party upon whom the burden of proof rests. Meyer & Bros. v. Houck, 85 Iowa 319; Hurd & Wilkinson v. Neilson, 100 Iowa 555; Cherry v. Des Moines Leader, 114 Iowa 298, and cases cited.
Of course, this rule must not be so applied as to deprive the jury of its function to ascertain the facts, upon a fair dispute in the testimony, and the doctrine now generally applied is that if, at the conclusion of plaintiff’s testimony, there is enough to take the case to a jury, a defendant cannot, after introducing his evidence, claim that there is nothing for a jury to determine. Bever v. Spangler, 93 Iowa 576-608;
Appellees’ counsel, conceding that there is some testimony tending to support the charge of negligence, nevertheless contends that the case is one calling for the application of this last exception to the rule, and this brings us immediately to a consideration of that question, which is the only one involved. The car which it is claimed did the damage was not being run at a high or dangerous rate of speed, and it is practically conceded that it could have been stopped within a distance of not less than 32 feet; and it is said that it was, in fact, stopped within half that distance, after plaintiff’s peril was discovered. If, then, the car was not closer than 50 or 60 feet from plaintiff, where he was thrown onto the track, the question of the motorman’s carelessness was for the jury. On the other hand, if he was within less than 35 or 40 feet from the ear, the motorman, of necessity, having little time in which to turn off his current and to apply his brakes, there would be no liability on the part of the company. Now the testimony shows that the horse was a gentle one, not easily frightened; that he gave no evidence of being frightened, until he came up to the hole in the street, and did nothing then until the driver spoke to him, and slapped him with the lines, when he immediately shied, lunged
‘ ‘ The horse looked at the hole and wanted to stop. I said ‘get up’ to the horse a couple of times and hit him on the back with the lines a little bit. Q. Then what did he do? A. Started to go across and made a lunge. . ., . He did not want to go. He wanted to stop, and he kind of stopped and I patted him a couple of times and said, ‘Get up, Joe,’ and he started, and at that he made a lunge or shy, whatever you call it. . . . Q. Then when you said, ‘Get up, Joe,’ you cracked him over the back with the lines; you say he then shied and turned suddenly towards the left? A. Yes, sir. Q. I suppose this all happened almost in a flash, didn’t it, Jim? A. Didn’t take long. Q. Just one of those accidents that happen just about quicker than you can tell it, wasn’t it? A. Yes, sir. Q. The horse turned toward the street railway tracks? A. Yes, sir. Q. As I understand you, the horse had shown no symptoms of fright until he made this sudden lunge? A. No, sir. ; . . He (horse) might have*16 stopped a second — might be two seconds or three seconds, wasn’t very long, — I couldn’t say, — just a short time. . . . Q. You were driving along there and the horse kind of slackened its speed and kind of looked towards the hole and then all of a sudden made this lunge ? A. Shiéd or lunged, whatever you call it. Q. As a matter of fact, he didn’t come to any particular stop, nor there wasn’t any perceptible amount of time that he paused? A. lie kind of stopped and looked at it and I hit him with the lines. Q. It was all done instantaneously, in a flash ? A. It wasn’t very long. . . . Q. When your horse became frightened and turned toward the track, where was the car? How far away? A. I do not know. Somewhere aromad 40 or 50 or 60 feet, tc the best of my recollection. ”
On cross-examination, he said:
“Q. Did you pay any attention to where it was when the horse made this sudden shy and lunge and turned ? A. I know it was somewhere around the center of the block. Q. But you could not tell where it was or how far it was away, could you, Jim? A. It might have been 50 feet and it might have been 60 feet. I could not say for sure. It was this side of the center. Q. It was somewhere between this side of the center between Beech and Vintoia streets ? A. Yes, sir. Q. But you would íaot undertake to say how far it was away? A. No. Somewhere between 50 or 60 feet. . . . Q. When you first saw the car as you approached Beech street, it was about half way between Beech street and Yinton street ? A. About half way. Q. Then you drove into Beech street, and you wasn’t paying any attention to where the car was, because you didn’t have any occasioia to? A. No, sir. . . . Q. I asked you the question where you were when you saw the car about the center of the street between Beech and Yinton, and you said you were approaching the intersection of Beech street, didn’t you? A. Yes, sir, I was close to Beech street. Q. And you said the car was then about the center of the block between Beech and Yinton? ■ A, When*17 I first noticed it. Q. As you were coming down the street? A. Yes, sir. After I saw the car at this place, I entered Beech street and continued along about the gait I have described until I came to the hole. I don’t know whether I drove 5 feet, 10 feet, or how far it was, but I kept driving right along, and the car was coming also. Q. You weren’t trying to think how far away the car was at that time, were you? A. No, sir. Q. And you wouldn’t undertake to say how far it was away? A. It was about the center of the block. Q. It was about the center of the block when you were ■approaching Beech 'street, — that is what you said? A. Yes, sir. Q. After you had entered Beech street and got to the hole and the horse made this sudden shy and turn and lunge in the direction of the car track, you didn’t pay any attention then to what distance the car was, or where the car was? A. No, sir, I was looking out for ourselves. Q. And you wouldn’t undertake to say where the car was at that particular time? A. No, it might have been 50 or 60 feet, or where it was — ■ Q. But you are guessing when you say it is 50 or 60 feet away? A. It might be that, I said, 50 or 60 feet, or more or less. Q. Well, it might have been a thousand miles away, too? A. Yes, but hardly. Q. You don’t undertake to say where it was at that time? A. I told you two or three times I didn’t. Q. And you didn’t notice where it was at that time, did you? A. I told you two or three times I didn’t. Q. Well, if you didn’t notice where it was, then you couldn’t undertake to say whether it was 50 or 60 feet or 10 feet away, could you? A. I told you two or three times I couldn’t. Q. That is all I want then, that is enough. ’ ’
Plaintiff himself testified:
“Q. What did the horse do when he came to this hole with the water in it? A. He stopped about a second, shied off to one side and whirled toward the street car track. . . . He kind of stopped for a second or fraction of a second and*18 kind of shied a little bit, made a quick whirl suddenly. Did not have time to do anything or think of anything much. Q. The horse didn’t have to go very far, just a matter of a few feet, to make the turn? A. A few feet, yes, sir. . . . Q. There wasn’t any time intervening between the looking and shying? A. No. Q. As the horse turned toward the street car track, did you notice the street car? A. Yes, sir. Q. How far was the street car away at the time ? A. It was, about half way at that time. Q. Half way to what? A. The next street below, somewhere from 60 to 75 feet, I should judge. . . . Q. HoM far were you driving from the curb line when the horse made this lunge. A. About the center of the street. That is, with reference to the, curb and the street car track. About that. Would be about 14 or 15 feet from the curb to the track. Ordinary.buggy, about 4 or 4^ feet wide. Q.. He turned toward the track? A. He whirled right around. Q. The horse didn’t have to go very far, just a matter of a few feet, to make the turn? A. A few feet, yes, sir. Q. And in this sudden turn around you were thrown out? A. Thrown out. Q. So, at that time, you could not say where the car was or how fast it was going? A. When horse was making that turn? Q. Yes, sir. A. Certainly, it was about half way down the block. ’ ’
Such is the testimony for plaintiff, and, ordinarily, it would be sufficient' to take the case to a jury, although there are some inconsistencies therein. But appellees’ counsel contend that the undisputed testimony and the physical facts are such that this testimony cannot possibly be true. They insist that the thills of the buggy struck and left their marks on the car; that the horse turned in a short space and cramped the buggy because of the immediate presence of the ear; that the buggy itself came in contact with the car, and left its mark thereon, and that, as a matter of fact, plaintiff was thrown out rather under than in front of the car; that the horse’s head, in turning’, came into the window of the vestibule of the car, and that the ear, in fact, struck him, although
Without setting out the testimony at length, we are constrained to hold that these claims are established without dispute, and that plaintiff’s story as to how the matter occurred cannot be squared with these physical and undisputed facts— this not being due to any intentional misstatement, but to the excitement of the moment, and the natural desire that every man has to shield himself .from blame. Indeed, both plaintiff and his brother testified, on rebuttal, that they would not swear that the thills or buggy did not strike the car, and they could not swear whether they did or not. Of course, if they were away from the car the distance claimed on their original examination, they could and should have sworn that they did not and could not strike the car. We must, also, give some effect to the finding of the trial court, who had the advantage of seeing and hearing the witnesses. We do not wish to assume the functions of a jury, or to trench on its province; but the trial court has a duty in the premises, and our duty is to correct that ruling, if error be made. No such error appears here, and the judgment must be, and it is, — Affirmed.