135 Iowa 329 | Iowa | 1907
The circumstances out of which grew the accident and injury of which complaint is made may be sufficiently stated for present purposes thus: On October 6, 1905, plaintiff entered a hack or carry-all, controlled and operated by A. B. Backus and Samuel Kennedy; for the purpose of being transported from one point to another in the city of Cedar Rapids. On the way the driver of the hack attempted to cross the street in a diagonal direction, and this necessitated crossing over the track of the defendant railway company. Before the hack cleared the track, it was struck by an approaching motor car, with the result that plaintiff’s arm was caught between the framework of the hack and the car, and severely injured. The action was brought against both Backus and Kennedy and the railway company, and the petition declares “ that said accident was caused solely by the joint and concurrent negligence of defendants and their employés.” This declaration is followed by allegations of specific acts of negligence charged against each. Thus, as to the railway company, it is said that it was negligent in three particulars: “ In permitting pas^ sengers to crowd into the front vestibule of said car, and to interfere with the motorman in running and in stopping said car; in neglecting to sound the gong or to give any warning while approaching said hack; in failing to stop said car
That some of the grounds of complaint lodged against this instruction are well taken becomes apparent on barest reading. Especially is this true when it is considered that in no other instruction — save what was said in the fourth instruction, presently to be considered — was there any attempt made to advise the jury in what respects and to what degree the defendant company owed a duty to plaintiff, or, as to the consequences of a failure of duty on its part. Reduced to a few words, this seems to be the gist of the instruc
II. Complaint is also made of the fourth instruction. It reads as follows:
You are instructed that the street car company is not bound to assume that any person will attempt to cross its track when the car is running and operating on. its track is being run near a team standing near said track, but you are instructed if. you are satisfied from said evidence'that defendant saw the team on said track, or by the use of due and reasonable care and diligence might or could have seen the team on the track, in a dangerous position, it was the duty of the defendant company to use all the appliances at its command and use by it and its employes to prevent the collision and prevent injury to the team and hack, and, if said evidence satisfies you that the defendant company did so, you will then .be warranted in finding it was not guilty of negligence. But if the evidence does not so satisfy you, but are satisfied that it failed to so use the said means to prevent said collision, and could have prevented the collision, you will be warranted in finding for plaintiff, etc.
Now, it is the rule of all our cases, and we need not cite them, that the test of negligence is a failure to use reasonable and ordinary care in view of the known conditions existing in the' particular case. Accordingly, as we think, the instruction under consideration should have confined the attention of the jury to the question whether or not in the exercise of such care the car in question could have been stopped soon enough to have avoided the accident. It was not the equivalent of this to tell the jury in effect that it was the duty of the motorman to use every appliance at hand, and that, if he failed in this, the defendant was negligent. The jury might well have found that the use of one appliance was more effective than the other, or, indeed, that an attempt to use all in conjunction would have been less effective than the use of but one. The motorman was called upon to act in an emergency, and after all, the question is: Did he act under the circumstances as a reasonably prudent person ? As this thought was not presented to the jury as a guide to reaching a conclusion, there was error.
Other errors are assigned; but, as they are not likely to arise upon a-further trial of the.case, we need not discuss them. It follows that a new trial must be, and it is ordered. — Reversed.