153 Iowa 254 | Iowa | 1911
The case as made -for plaintiff in the petition is as follows :
That, on the 2d day of September, 1909, she entered one of the passenger cars of the defendant (car No. 169), which was being operated on the Ft. Des Moines Street Eailway line. That the said line of the defendant company crosses the railway tracks of the Chicago, Eock Island & Pacific Eailway Company at First and Yine Streets, in the city of Des Moines, and that, when the car on which plaintiff was riding reached the intersection of the defendant’s track and the tracks of the Chicago, Eock Island & Pacific Eailway Company at First and Yine streets, it was struck by an engine and train of the said Chicago, Eock Island & Pacific Eailway Company, bound east to the Iowa state fair grounds, in the eastern portion of the city of Des Moines. That the said car on which plaintiff was riding was in charge of a motorman by the name of Williams, and there was stationed there a flagman. That said motorman, as he approached the intersection of the street railway and the Eock Island tracks, did not see the approach of the engine and train on said Eock Island tracks, although said engine and train were in plain sight, and said Eock Island train had the right of way at the intersection of said tracks at said time. That the said motorman did not stop his car north of the intersection of said tracks until the engine and train of
And the grounds of negligence are thus summarized:
That the plaintiff further states' that the defendant was negligent, as follows: First. In that its motorman failed to stop his, car before it reached the intersection of the tracks of the Eock Island Eailway Company. Second. That the defendant was negligent, in that its motbrman failed to stop his car at a place north of the track of the Eock Island Eailway Company where the passenger train of the latter company would not collide with the defendant’s car. Third. That the defendant was negligent, in that its motorman undertook to pass in front of the Eock Island train, which had the right of way. Fourth. That the defendant was negligent, in that its motorman, with knowledge or means of knowledge of the approach of the Eock Island train, caused his car to be moved over the crossing where it would be struck by the Eock Island train.
At the time of the accident complained of, the steam railway had in use a double track, extending from the passenger station of said railway company on’Fourth street, in the city of Des Moines, to the fair grounds in said city. The defendant street railway company had a line of tracks in use, extending from Court avenue south and southwest to the army post, located south of the business section of the city of Des Moines, which said track, as it leaves Court avenue, runs along and upon First street for a number of blocks and intersects the Eock. Island. double track at Vine street, a distance of a block south of Court avenue. Said line of street railway also crosses the Des Moines Union tracks, the
At the intersection of the defendant railway tracks with the Chicago, Rock Island & Pacific tracks, there was in operation, prior to the convening of the state fair, a derailer switch just north of the north track of the Rock Island, some thirty-nine feet. The derailer lever, by means of which said switch was opened and closed, is located south of the south track of said Rock Island Railway Company at said'track intersection. At the time the state fair convened, the defendant company spiked the derailer switch, so it could not be operated, and placed at the intersection of said tracks a flagman, whose duty it was to look for approaching trains on the Rock Island tracks, and give signals to the motormen to stop or cross, as occasion might warrant. Previous to this time, however, no switchman was located at such track intersection. The custom was for the motorman to approach the derailer switch and stop just north thereof. The conductor would get out of the car, cross the tracks, look for approaching trains, go to the derailer lever south of the tracks, close the switch, and, if the Rock Island tracks were free from approaching trains in near proximity, give a signal to the motorman to come ahead. During the state fair, however, the defendant company installed a switchman system, and the switchman was required to do the work which had been previously imposed upon the conductor and motorman.
The Chicago, Rock Island & Pacific Railway Company had also placed at said track intersection a flagman to warn, not only the motormen of street railway cars, but the traveling public who might be attempting to use the crossing.
On the day of the accident, the plaintiff took passage on car No. 169 at the corner of Fourth and Court avenue to go to her home at some point south of the Chicago, Rock
The motorman testified that he did not remember of having looked to the west for approaching trains after he stopped his car at the derailer switch and looked to the west and saw no train approaching. The undisputed evidence is that the train which collided with the defendant’s car was proceeding from the passenger station at Fourth street to the fair grounds. There were six or seven cars attached to the engine, which was backing eastward. There was no one stationed on the ■ tender of the engine to give signals of approaching danger. The train, as shown by the evidence, ■was running from twelve to fifteen miles per hour as it approached First street. It started from Fourth street, a distance - of three blocks, was continually gaining headway, throttle was open, and it was proceeding very rapidly until it passed the alleyway running north and south between First and Second streets. The city ordinance of the city of Des Moines at the time provided that no train on any steam railway tracks should be operated within the city limits at a greater rate of speed than six miles per hour.
The- case was submitted to the jury under instructions, some of which are challenged, and a verdict was returned for plaintiff in the sum of $5,500, upon which judgment was rendered in due course. Many errors are assigned, but the argument is confined to six main propositions. These will be considered in the same order as found in appellant’s brief.
All street cars must come to a full stop before crossing any railroad track.
Should a motorman fail to stop a car, the conductor must see that he does stop.
The conductor must cross the railroad tracks, going clear to the opposite side of all tracks, looking in both directions on the railroad for approaching trains, engines or cars, and must not signal his motorman to cross until all moving trains, engines and cars have passed, and until he has seen that no other trains, engines or cars are following. When all is clear, the conductor will close the derailing switch, if there is one, and signal the motorman to cross. The motorman must close the car gates while crossing the tracks, and must not start his car until signal is given by conductor, and must then look for trains or other possible trouble before starting his car.
Motorman must not start car when crossings -are run or derailers closed by any person other than his conductor or some other employee of this company. During daylight the conductor will give signal to start by a full swing of his arm from a back position to a forward position.
The employees of defendant failed to comply with this rule; but it is contended that by reason of the spiking of the switch this rule was abrogated. As to this, more hereafter. • It also appears that at the place where the motorman stopped his car he could not see a train approaching from the west for'more than one hundred and ninety feet; that without again stopping or looking toward the west he obeyed the signal of the flagman, and attempted to run over the crossing. By stopping or looking at a point fifteen or twenty feet north of the steam railway tracks, he could have seen
We are constrained to hold that this instruction is too broad, and that it can not be sustained. As applied to the facts in the case, it was a virtual direction to the jury to find a verdict for the plaintiff; for, under the conceded facts, the motorman, although he stopped his car, did not do so at the point.where he might reasonably have expected to see the approach of the train on the Eock Island tracks. The general rule is that both negligence and contributory negligence are questions for a jury, and the only exceptions arise where the facts are so clear that reasonable minds would not differ in their conclusions upon the subject. Of course, it was the duty of the motorman to look and listen for approaching trains upon the Eock Island track, and it may and doubtless was his duty to stop his car when approaching the track; but, having stopped his car and brought it under control, was it negligent for him to obey the flagmen’s signals, and to proceed to cross the railway track without again stopping his car to see if a train was approaching ? This is the pivotal question in the case. The trial court instructed that he owed such duty as a matter of law, and that if he, failed to stop a second time he was guilty of negligence as a matter of law. We think the question, not one of law, but of fact for a jury. Of course, a jury might have found the motorman negligent in not stopping at the right place, or in failing to stop a
It is true, of course, that the motorman who was driving the car in question was bound to the exercise of the highest degree of care, foresight, and prudence in caring for the passengers on his car; but in view of the presence of the flagman at the crossing, it was, as we think, a question for the j ury to determine whether or not, in the exercise of that care, he should have stopped his car at a different place from the one selected by him, or, having stopped where he did, should have stopped again, before proceeding to cross the steam railway tracks. Of course, the rule of the defendant
There seems to be no merit in any of the other contentions made for the appellant; but for the error pointed out the judgment must be, and it is, reversed.