184 Iowa 525 | Iowa | 1918
I. Upon analysis, the petition is found to charge the following negligences:
a. Running and operating the car at a public street crossing in the business section of the city at an excessive and high and dangerous rate of speed.
b. Proceeding east before plaintiff was clear of the track, without first having a signal from the traffic policeman to proceed east.
c. Failing to observe the track and street ahead of the car.
d. Failing to maintain a lookout in advance of' the car, so as to enable the defendant to see that the rear of plaintiff’s buggy was not yet clear of the track, in time to stop and avoid the collision.
e. Operating the car without having such control over the same as that it could be stopped before it reached and struck the plaintiff’s buggy.
f. Failing to ring a bell or give any other warning of the advance of the car.
g. Running the car in such a reckless and wanton manner as to run the same into the rear of the buggy, when same was in plain sight and not yet clear of the tracks.
The defendant, in various ways, asked the court to hold that, as a matter of law, there was no evidence of any actionable negligence, and to hold, as matter of law, that the plaintiff was guilty of contributory negligence. We have to determine whether the court erred in refusing so to hold.
2-a
It is charged there was negligence in starting the car at all, at the time it started. The argument is that there
2-b
2-c
In Louisville R. Co. v. Wehner, 153 Ky. 190 (154 S. W. 1087), it is held that a street railway company is not liable for injury by running into an automobile, where no accident might have occurred if the automobile had kept going on instead of stopping, though it did this stopping at a signal from a policeman. One in charge of a street car has the right to presume that one walking along the side of the track will, in the exercise of ordinary prudence, not attempt to cross the track immediately in front' of the car until he gives reasonable ground for concluding that he may so cross. Beem v. Tama & T. E. R. & L. Co., 104 Iowa 563. A motorman who sees a wagon approaching the track in front of his car has the right to presume the driver will use his senses in looking out for the car. Markowitz v. Metropolitan St. R. Co., 186 Mo. 350 (85 S. W. 351). A motorman is entitled to presume that one traveling on a street will remain on that part of it which is not occupied by the railway, and may so presume until such person shows by his actions that he is going to attempt a crossing. And if
If any negligence caused the injury of the plaintiff, it was not negligent lack of control.
If the flagman signals the motorman to proceed, when it is dangerous to do so, the negligence is that of the city, and not of the street railway company. Baltimore Consol. R. Co. v. State, Use of O’Dea, 91 Md. 506 (46 Atl. 1000). In Mobile L. & R. Co. v. Burch, 12 Ala. App. 421 (68 So. 509), the holding is that, if a street car motorman does not see a traffic officer who is on or near the track, he is negligent for failing to discover him. It has some bearing, then, on the ultimate question we have, that the motorman did not start until the traffic officer gave him a signal to do so.
III. It is charged there was negligence in failing to ring a bell, or give any other warning of the advance of the car. This suggests some reinforcements for the positions already advanced in this opinion. The plaintiff knew the functions of a traffic policeman, and recognized the importance of being controlled by his signals. It is, of course, insisted that she was guilty of no negligence in turning north without receiving signal to do so. • That means that, while plaintiff is not negligent though she attaches no importance to warning by a signal from the traffic policeman, anyone who fails to give her warning, is negligent. As an amplification of the complaint that here it was negligent not to ring a bell or give other warning of the advance of the car, we are told in argument that plaintiff was paying attention to
3-a
If this be the law where plaintiff merely could, with
3-b
The top of the buggy was up. One argument for the claim that plaintiff did not see the traffic policeman signal the motorman to go east is that she was traveling “in a covered buggy.” The side curtains were down; and this, with the top up, disenabled her to see anything coming from behind, unless she put her head out past the curtains, which were down on the sides. Owing to the position of the seat, she would be obliged to stop and “lean way out,” to get a view of anything from behind, unless she looked into a glass which she had, and which she did not look into. A disinterested eyewitness says that, at no time during the time in inquiry, did he see anyone stick a head out of the buggy. There is some confusion in the testimony of the plaintiff herself as to her looking, and at one place in it, she seems to say that she did look before turning north, to see if she had a clear way to turn; and that, at that very time, the car was still standing on the west line of Fourth Street. It is undisputed that the horse was across the track before the collision occurred. Even if the car started on that instant, it could not have collided, unless, at 4 miles an hour, it could go at least 40 feet in less than the time required to pull the buggy across the track. This is, of course, a physical impossibility; and it is but fair to say that the positive testimony of plaintiff and her companion make it very clear that, if the plaintiff looked at all, it was at the time when
3-c
We are told that, though the plaintiff had gone east on a signal, this did not oblige her to keep on going east indefinitely. That is so, of course. But is that any justification for what the plaintiff did, or failed to do ? Though she was not under obligation to continue eastward, she had started in that direction on permission by signal. Though not obliged to go on in the direction in which she had been permitted to go, the fact that she was traveling east on permission by signal would seem to require that she should not, suddenly and without indicating a purpose to do so, change her direction — at least not until a second signal permitted her to turn from the east to the north, across the track on which she knew there was a car sure to go eastward, and sure to collide with her if she was crossing the track to the north when the car reached her on the west. It is conclusively shown that, without any disclosure of an intention to change her course, she made a sharp turn across the track. on which she must have known this car would come toward her at some time, and might collide with her unless she cleared the track' before the car reached her. On the same reasoning that justifies the defendant in going east on signal to do so, it was not negligent for the car to keep going east until the plaintiff gave some outward indication that she was going to cross. And on the same reasoning, the failure to give that indication constitutes negligence. Birmingham R. L. & P. Co. v. Clarke, 148 Ala. 673 (41 So. 829).
It is significant that one charge of negligence in the pe
3-d
It is, in effect, argued for the appellee that the intersection of Fourth and Locust Streets is one of the principal thoroughfares between east and west Des Moines; that the streets at this point are used a good deal; that lots of teams and automobiles and street cars are constantly going back and forth over this intersection; in a word, that a driver might be distracted. While this may usually have been a very busy thoroughfare, as stated, the testimony of White, which is not disputed, shows that, at the time of the collision, there were no rigs or vehicles about, and nothing to distract the attention of the plaintiff. And the argument is two-edged. The plaintiff was familiar with all that her counsel urges in her behalf. If a rush of business at the point, or other things usually there, furnish an argument for avoiding contributory negligence, it must be borne in mind that one who knows the conditions are what appellee now says they are, was thereby bound to greater care, and, to say the least, to be guided by signals from the traffic officer. This court has properly said, in the companion case, that, where the crossing is greatly frequented, and travel and traffic tend to congestion, and where promptness and activity, if not haste, are required,- it is not always easy to say whether all the parties have observed their reciprocal duties. Assume that there was such a- condition about this intersection, and the same reasoning which demonstrates
IV. The claim that the collision was wantonly caused, in effect an invoking of the doctrine of the last clear chance, has no support in the evidence. This has been quite fully shown by what we have already said. In addition, it is undisputed that the rails were wet, and that the stop was made as soon as possible after there was any notice of plaintiff’s position and peril.
The whole case is fairly ruled by the recent case of Livingstone v. Dole (December 14, 1918), wherein the following able summary is found: That the driver of vehicles is required to keep a lookout at all times at such localities does not exempt pedestrians from making reasonable use of their senses in passing over. Each has an equal right to the use of the streets. “One has no rights superior to the other, save as declared by statute or ordinance, and each is obliged to act with due regard to the movements of others entitled to be on the street. Neither is called upon to anticipate negligence on the part of the other. It is no more the duty of the driver of vehicles to continually look out for pedestrians than the latter to look out for vehicles. No pedestrian has a right to pass over a public thoroughfare without regard to approaching vehicles, nor has any vehicle driver a right to appropriate the public street, without regard to its use by pedestrians.”
Other matters presented need no consideration, in view of the points determined.
We are constrained to hold that a verdict should have been directed for defendant, and that, therefore, the cause must be — Reversed.