31 Iowa 527 | Iowa | 1871
— The evidence shows that the defendant was a teamster in the city of Dubuque; that he had backed up his team in the public street for the purpose of unloading the same; that in the street, on which defendant’s wagon was thus backed up, is constructed and operated a street railway; that at the point where said wagon was thus situated, the track of the railway came so close to the sidewalk that the wagon could not be backed in without extending across the track. Nor was defendant’s wagon so constructed that the team could be moved around to one side so as to allow the cars to pass; that the only way was to pull the wagon entirely out, let the car pass, and then back in again; that while defendant’s wagon was being unloaded,' and all of the load except one box removed from the wagon, a car came along; that the truck had been taken into the wagon to remove this last box, and that it could have been removed in from one to two minutes and the wagon removed; that a police officer came up and took hold of the defendant’s horses, and defendant told him to let them alone, that he would move out of the way as soon as he got the box out. Whereupon the officer arrested him.
The section of the city ordinance under which the arrest was made is as follows:
“ Sec. 8. The tracks of such roads as may be constructed shall be put down in such a manner as to obstruct the streets as little as may be. And the cars of said company (the company building and operating the street
“ By the charter granted by the city of Dubuque to the street railway company, the cars of the company take precedence over all other vehicles on the street on which the track is laid; and it is made an .offense for any person unnecessarily to obstruct or impede the running of cars on such track. Therefore, if you find from the .evidence that the defendant placed his team across the track of said railroad, and permitted it to remain there and prevent the passage of the cars on said track for a longer time after notice to remove it than was reasonably required by him to remove it, then the defendant is guilty.”
‘•‘If you find from the evidence that the defendant placed his team across the track of said railroad and permitted it to remain .there, and prevent the cars from passing on the track; and refused, after notice, to remove his team until he had unloaded his wagon, he is guilty.”
No question is made upon the validity and scope of the city ordinance, ft is not claimed that) in giving precedence to the cars upon the street railway the city exceeded its proper powers, nor is it contended, that in creating and defining the offense of obstructing the cars, there was any undue exercise of power. It is insisted, however, that the court, in the instructions .given, .took the.case from the jury, leaving nothing for them to do but to return a verdict of guilty.
Under the city ordinance, quoted from above, to obstruct or impede the running of the cars on the street
It must be borne in mind, however, that the offense defined by the ordinance is not for an unreasonable obstruction of the street cars, but an v/rmecessary one. The only question for the jury, therefore, was, whether defendant had unnecessarily obstructed or impeded the cars. The court instructed them that a refusal by defendant to remove his wagon, which was obstructing the track, within a reasonable time after request, was an unnecessary obstruction ; and we see no error in such instruction, for it was conceded that there was no impediment to prevent defendant from removing his wagon from the track.
The case of The Commonwealth v. Temple, 14 Gray
“ It is said above that it was usual for -those in charge of heavy and slow teams to drive them with one wheel on the track, and that they could be drawn much more easily in that place than in any other part of the street. This is no justification. While the track was not required for the cars, perhaps the teamster had a right so to use it. But when required for the cars, which could pass in no other mode, he had no legal right to consult his own convenience, to the great inconvenience, the actual injury, of the equal rights of another.” Ll
“ If it be said that the obstruction in this ease was very slight, that the cars were delayed but for a very short time, the answer is, that this is very true, and the injury may be trifling in itself; but, vindicated and justified, as it is in the argument on the ground' of right, it tests a principle of very great importance. ' If the driver of a heavily loaded truck or wagon may, for his personal convenience, use one rail of the track, willfully, for a few hundred feet, others may use the other rail for the like purpose, and for
As in that case, so in the one before us, if it be conceded that the defendant had the right to obstruct the cars for one or two minutes, for the convenience of completing the unloading of his wagon, others would have the same right for the same or similar purposes; and if for one or two minutes, why not for five or ten % This would lead to results destructive of the rights of the railroad company and the traveling public. The wagon of defendant being upon the track, it was his duty to tarn or remove it, without unnecessary delay, when the cars required the use of the track. It was his duty to turn out or drive off the track at once, there being no impediment to hinder him from doing so, and he had no right to consult his own convenience as to the time of doing it.
■ In Willard v. The Eighth Avenue R. R. Co., 3 Bosw. 314, it is held, that “ the street railroad company is entitled to the umrest/ricted use of its rails for the progress of its cars, within the limit of speed allowed by law, and the driver of any other vehicle being rnmecesswrih/ on the track, is bound to exercise greater care than if upon the common pavement, to see that the approaching .car is not
Under the city ordinance in this ease the street cars are given precedence over all other vehicles, persons or things upon the railroad track, and any obstruction or impediment to the free and unrestricted use of the track, not the result of necessity, for any length of time, however short, is an offense under the ordinance.
Affirmed.