166 Iowa 506 | Iowa | 1914
The Des Moines Union Railway Company’s terminal station building and depot grounds extend west from Fifth street to some distance beyond Sixth avenue. Fifth street and Sixth avenue run north and south. Cherry street is immediately north of the depot building, and Wagner street immediately south of the station grounds. These streets run east and west. Sixth avenue is closed, and does not extend through the station ground. The tracks of the terminal company are immediately south of the station, and extend east and west. There are six sets of tracks, two tracks immediately south of the depot building. South of these two tracks is a long train shed. Immediately south of this train shed is the third track, running directly east and west, from Fifth to Eighth street. Immediately south is the fourth track. Immediately south of that the fifth track. Immediately south of that the sixth track. Tracks four and five parallel track three until they approach Fifth street from the west. They then curve to the north. At the time of the accident complained of, there were what is called cross-over walks, paved walks leading across the tracks three and four. One of these cross-over
The evidence tends to show that on the morning in question, at about 7:30 o ’clock, plaintiff came from his office at the Burlington depot, south and east of Fifth street, to the
Plaintiff claims that after he left the messenger and proceeded eastward and reached the cross-over walk he then passed diagonally, on the cross-over walk, to the space between tracks four and five. That after he got in the clear, and before he proceeded further east, he looked to the west, up track five. That he could see five or six hundred feet up the track to the viaduct, which is on'Seventh street. He saw no train or engine upon track five at that time. That no train or engine was in sight, on track five, west of the point where he turned to go eastward. That he continued walking between tracks four and five, towards the east, without looking back. That, when he had walked about eighty feet, he turned to the south and attempted to cross track five. That, while he was in the act of doing so, he was struck by the engine.
It is claimed that the engine that struck the plaintiff was at .a point fifteen or twenty feet west of Seventh street, at the time it started eastward; that the east line of Seventh street is six hundred and thirty one feet west of the west line of Fifth street; that Seventh street is sixty-five feet wide; that the total distance from the west side line of Fifth street to the point where the backward movement of the engine began was something over seven hundred feet. From this, it is claimed that while the plaintiff was walking eighty feet, or thereabouts, the defendant’s engine had moved about seven hundred feet. Plaintiff testified that he was walking five or six miles an hour. If these figures are approximately correct (and there was evidence in the record to support them), the defendant’s engine, after it started from Seventh street, must have been moved at a speed greatly in excess of the legal limit. The place where the train started, as we have given it here, is fixed by the defendant’s witnesses. The plaintiff claims that, after he had cleared the cross-over walk and started to proceed east, he looked backward. The evidence tends to show that there was a clear view, on track five to Eighth street, far beyond the
Under plaintiff’s contention, it would be absolutely essential that the defendant run its engine at a very high rate of speed in order to reach the point where plaintiff was struck, at the same time that plaintiff reached that point. That is, the train must necessarily have been operated at a high rate of speed, to reach the point where plaintiff was struck, while the plaintiff was walking eighty feet, at the rate of five or six miles an hour, if plaintiff’s contention is true.
¥e think from this record that the jury might be justified in finding that the company operated its engine in excess of the legal limit, fixed by the ordinance of the city, six miles an hour. If the engine had been standing at Seventh street at the time plaintiff looked, and the plaintiff had seen it standing there, and from that point it had been operated at a rate of six miles an hour only, or if plaintiff had reason to believe, when he looked, that it would be operated at a lawful rate of speed, the plaintiff might well have assumed that he had plenty of time to pass the point where he was struck, before the engine could have reached that point.
It is claimed that the plaintiff was guilty of contributory negligence in that he did not look again before attempting to cross track five; that it was not sufficient, to exculpate him, that he looked at the point ivhere he says he looked.
It was the duty of the defendant company to operate its train at a speed not to exceed the limitation imposed on it by law. This was a duty it owed to all affected by the regulation.
Nearly every relation in life and every act is bottomed on the perhaps unconscious presumption that those with whom we deal will do the thing that is right; will recognize and observe the duties they owe to us, be it either a legal or a moral duty. No one is either morally or legally bound to know that another will neglect a positive duty.
Can one be held guilty of negligence, as a matter of law, who, observing a condition in which no peril or danger appears, acts on the assumption that there is no danger, if, thereafter,
Applying these propositions, concretely, to the case at bar, and taking plaintiff’s version of the facts, we find that the plaintiff, after he had gotten around the engine, where he had a free opportunity of observing the condition of track five, looked up the track a distance of four hundred, five hundred or six hundred feet, and saw no train approaching. He knew that the city regulated the speed of trains, and that the defendant had no right to operate its trains exceeding six miles an hour. He had only eighty feet to go before he would pass onto track five. He might well assume that there was absolutely no danger attending his act, if the defendant’s train ivas operated in accordance with the speed regulation. Was the plaintiff therefore negligent in not anticipating that they might run their train greatly in excess of this speed, and was he therefore negligent in not guarding himself against such a possible contingency 'Í Or, in other words, can we say, affirmatively, that the plaintiff, in the position he was at that time with the knowledge he had from his observation, the knowledge he had of the speed limitation imposed, did not act as a reasonably prudent man would act under like circumstances 1
Does an act of negligence, on his part, so affirmatively
It was for the jury to weigh the evidence, and if they were justified in reaching the conclusion that the defendant company was operating its train at a speed greater than that fixed by law, and that the plaintiff’s injuries were the proximate result of such negligence on the part of the defendant, and if the jury were further justified, under the evidence, in finding that the plaintiff, under the conditions that then existed, used ordinary care for his own safety, or, in other words, that the injury was without any failure of the plaintiff to use ordinary care in anticipating the danger, from the approach of the engine, then, so far as the question of contributory negligence is involved in this suit, the verdict should be permitted to stand. The law is well settled on this question.
We are asked to reverse this case on the ground that the evidence shows, without conflict, that the plaintiff was guilty of negligence contributing to his injury, in that he failed to exercise reasonable care to avoid the danger incident to his act. The testimony of plaintiff, as a witness, tended to show that after he had left the messenger on the Q. train, after he had come to this cross-over walk, that he turned diagonally over this walk to the south and east; that he then looked backward and saw no train approaching on track five, and thereupon he proceeded eastward, without further precaution for his safety, until he was overtaken and injured by impact with the tender of the engine. Now having looked to the west,
It is said in Camp v. Ry. Co., 124 Iowa, 238, a case very similar in its facts to this, and we quote the language because it is apropos to the situation here:
But it appears from his testimony (the plaintiff’s) that, when he looked eastward at the frog along the track, it was unobstructed to such a distance that he could have seen an approaching engine, if near enough to him to overtake him, approaching at a rate of six miles an hour, the maximum speed allowed by the city of Marshalltown, before he should reach the toolhouse, and, if he did look, and there was no engine or train in sight coming from that direction, and near enough, approaching at that rate of speed, to overtake him before reaching the toolhouse, he was not guilty of contributory negligence in not looking again before reaching the toolhouse.
In the case at bar, there is no claim that plaintiff’s view was obstructed, and therefore that' he should have assumed a greater caution on that account, in approaching the track.. He says, and his evidence tends to sustain him, that he could see westward for a distance of five hundred, six hundred or seven hundred feet. Of course, it is the duty of every one, in his own 'conduct, to exercise reasonable care and caution for his own safety, and especially is this incumbent on him when in a place of danger. This duty is ever present with him, and the necessity for self-preservation suggests it to the mind.
But, in a case like this, while the plaintiff was bound to know that engines and trains would be running on these tracks at any time, was he bound to know and anticipate that
The plaintiff claims, and there is evidence to sustain his claim, that the bell on the engine was not rung, and was not
This question of ordinary care, of watchfulness, involves so many considerations in determining whether it was observed, that in nearly every ease it becomes a question for the jury. We think it is peculiarly a question for the jury here, and the case ought not to be reversed upon this ground.
This disposes of the first error assigned and relied upon by the defendant. See Case v. G. G. W. Ry. Co., 147 Iowa, 747, in which it is said:
One about to cross a railway track has a right to assume that trains will not be run at an unlawful rate of speed; that the usual and customary warnings will be given; and that the railroad company will comply with its duty in approaching street crossings.
It is nest contended that the court erred in the statement of the*issues to the jury.
We have examined this question, and find that the issues as presented by the pleadings were fairly stated. Whether there was evidence to support these issues is a different question. Issues presented by the pleadings, upon which no evidence is offered, ought not to be submitted.
If negligence is predicated upon conduct, which, if proven, is not actionable negligence, a proper remedy is to move to strike it out, or it should be assailed by demurrer, or in some other .way that directs the attention of the court to the fact that the acts charged as constituting negligence are not actionable under the law.
Plaintiff in bis petition claimed that tbe defendant was negligent in that defendant’s engineer negligently failed to keep a lookout for, and to warn plaintiff of, tbe approach of the engine as plaintiff approached and passed upon tbe track in said station, and negligently failed to stop tbe engine in time to have prevented injury to the plaintiff, and it is complained that tbe eourt set out this specification of negligence in full in its charge to the jury, and that tbe court said to tbe jury that in determining defendant’s negligence they were to consider whether, in the exercise of ordinary care, defendant’s engineer could have stopped his engine in time to have prevented the injury to the plaintiff. The court, upon this point, said to the jury:
In determining whether the defendant was negligent, you will consider, so far as shown by the evidence, the nature and character of the business in which the defendant was engaged; the location where the accident is alleged to have occurred, and the surroundings thereabout; the manner in which defendant’s engine was moving through said station, at said time and place; and the facts and circumstances relating thereto, whether the engine bell was rung, or other alarm given, to indicate the approach of the engine; whether the engine was run at a rate of speed prohibited by the ordinances of the city; whether, at said time and place, the engine was run at a greater speed than was proper, in the exercise of ordinary care; whether the defendant’s engineer failed to keep a lookout, and to warn the plaintiff of the approach of the engine; whether, in the exercise of ordinary care, defendant’s engineer could have stopped the engine in time to have prevented the injury to the,plaintiff; what the defendant’s employees in charge of said engine were doing, or, in the exercise of ordinary*517 care, should have done; what the defendant’s employees in charge of the engine knew, or, in the exercise of ordinary care should have known; together with any other facts and circumstances disclosed by the evidence, showing, or tending to show, that the defendant was or was not negligent, as charged by the plaintiff.
It is claimed by the defendant that there is no evidence upon which the jury could possibly have found that the defendant, by the exercise of ordinary care, could have stopped the engine in time to have prevented the injury, after discovering plaintiff’s peril. The -jury might have been justified in finding that the engineer did see plaintiff as he was proceeding eastward between tracks four and five. He claims that he was looking. If he were looking, he must have seen him. He said:
‘I was watching my track all the time, watching when I got to the cross-over, watching Fifth street in case somebody might cut across.’
No peril attached to plaintiff’s position while he remained between the tracks, and it is claimed that the engineer had no reason to anticipate that he would attempt to pass in front of the engine, and that therefore he owed him no duty to stop the engine until he discovered his attempt sq to do. The undisputed evidence shows that the engine could not be stopped so as to avoid injury to the plaintiff, after he stepped upon the track; that the plaintiff continued his course eastward between the tracks four and five; that, during the time he was upon this paved walk between the tracks, he was not at a point of danger. He could not have been injured had he continued between the tracks, and no duty arose, on the part of the company, towards the plaintiff until it became apparent to those in charge of the engine that the plaintiff was about to leave the place of safety and assume a position of peril.
It is apparent, from the whole record, that it is true that while plaintiff was between the tracks, upon the brick walk
The ease of Ressler v. Wabash Railway Co., 152 Iowa, 449, and cases therein cited, hold to the doctrine that, where a duty to keep a lookout exists, a failure to perform this duty is negligence. A failure to discover the peril, where the duty to look out exists, which might have been discovered by the performance of this duty, and a failure to stop the engine and avoid the injury, is actionable negligence. The failure to keep a lookout in a case of this kind is so interwoven and so associated with a failure to act that they cannot be disassociated. You cannot consider them apart, and in that ease it was said:
‘The court may direct the jury that if in its judgment, in view of all the’ conditions shown to exist, ‘reasonable care requires the enginemen ... to anticipate the possibility of collision with persons rightfully’ at the point, ‘and to keep a lookout in approaching it in order to avoid such accident, then the omission so to do will be negligence. ’
It is claimed that the court submitted this case to the jury on the doctrine of last clear chance, and that it erred in this, because of the fact, disclosed by the evidence, that the plaintiff was not in a position of peril up to the very moment of the collision; that he was in a position of safety between the tracks, and the peril did not arise until he voluntarily removed himself from the position of safety into the position of danger; that there was no interval of time between the act by which he placed himself in the position of peril and the collision, in which the train could have been stopped; that even with a lookout, even with knowledge of the plaintiff’s position, prior to the collision, the defendant company was under no obligation to stop its train until it became apparent, to those in charge of the train, that the plaintiff was about to remove, or was in the act of removing, himself from the place of safety to the place of danger.
The plaintiff in his petition, as his fourth specific charge of negligence against the defendant, said:
Defendant was negligent in that its engineer negligently failed to keep a lookout for and to warn the plaintiff of the approach of said engine as plaintiff approached and passed upon the said track in said station, and negligently failed to stop said engine in time to have prevented injury to this plaintiff.
The court, in stating the issues to the jury, repeated this charge of negligence as the third distinct ground upon which plaintiff predicated a right to recover, stating it in the words in which it was pleaded, and again, in the fifth paragraph of its instruction, the court said to the jury:
*520 The plaintiff in its petition alleges that the defendant was negligent in the following respects, among others: In that defendant’s engineer negligently failed to keep a lookout for and to warn the plaintiff of the approach of said engine, as plaintiff approached and passed upon said track, and negligently failed to stop said engine in time to have prevented the injury to the plaintiff.
And said to the jury that, in determining whether defendant was guilty, they should consider whether, in the exercise of ordinary care, defendant’s engineer could have stopped his engine in time to have prevented injury to the plaintiff, and further said to the jury that if the employees of the defendant, in charge of the engine, are proven to have been guilty of any of the acts of negligence, charged by the plaintiff in his petition, as set forth in these instructions, such act or acts, if acts of negligence, would be the negligence of the defendant.
Negligence is always predicated upon a failure to discharge some duty which the party charged owes to the party injured. It therefore becomes important in every case to know what the duty is that was violated upon which the negligence is predicated.
The defendant had a right to operate its train upon these tracks at a lawful rate of speed. Assume that it was its duty to keep a lookout, to ring the bell, and to give warning of the approach of the train. Assume that it was its duty not to exceed the limit of speed fixed by the ordinance. Assume that it had done all these things. Assume that it discovered the plaintiff walking between tracks four and five upon the brick walk prior to the collision. Was it the duty of the defendant company to anticipate the action of the plaintiff, and to foresee that he might pass from the point of safety to a place of danger in front of the engine, and to stop its train in anticipation of such possibility? Or had the company a right to rely upon the assumption that the plaintiff would continue
As the defendant had a right to run its train upon this track at a lawful rate of speed, as plaintiff had a right to he upon this brick walk, the duty of the defendant to stop its train did not arise until it became apparent to the defendant that the plaintiff was about to assume a position of peril upon the track.
The jury could well have found, under the evidence, that the defendant could have stopped its engine at any time prior to the injury and thereby avoid collision with the plaintiff ; but its duty to do so did not arise until it discovered the plaintiff in the act of attempting to cross the track in front of the engine, and the undisputed evidence shows that there was no interval of time, between that attempt and the collision, in which the engine could have been stopped. The court therefore left it to the jury, as a basis for negligence, to say whether the company could have stopped its engine before the collision, and impliedly said to the jury that if it could have done so, and injury occurred, recovery might be had, without telling the jury when that duty arose, and without any evidence to show that the engine could have been stopped after the discovery of the plaintiff’s peril.
With these several stated grounds of negligence submitted to the jury, separately, as a basis for recovery, it is not possible to determine on which of the several grounds the jury based the liability of the defendant. To tell the jury that they may base liability on a state of facts, the existence of which the evidence negatives, or to tell them that they may base liability, as for negligence, upon a state of facts which, in themselves, and of themselves, as a matter of law, do not constitute negligence, is prejudicial error.
In view of the sharp conflict in the evidence, as to every ground of negligence charged, the jury might have found in favor of the defendant on every specification of negligence
Defendant was negligent in that its engineer negligently failed to keep a lookout for and warn the plaintiff of the approach of the engine as the plaintiff approached and passed upon, the track in said station, and negligently failed to stop said engine in time to have prevented injury to the plaintiff.
Further, the jury might have found, under this specification of negligence, that the engineer did keep a lookout and did warn the plaintiff of the approach of the engine as it approached the plaintiff,- and before plaintiff stepped upon the track, and while he was in the position of safety, yet it might have found, under this instruction, that the defendant was negligent in that it failed to stop the engine before it reached the point where plaintiff was injured; that if, instead of giving warning of its approach, it had stopped the engine before reaching the point where plaintiff was walking, plaintiff would not have been injured. It is true, without question, that if it had stopped its engine before it reached the place where the plaintiff attempted to cross the track plaintiff would not have been injured.
This instruction placed too great a burden upon the defendant; a burden that, under the law, it is not required to bear. Its duty to the plaintiff to- stop the engine did not arise upon discovering him between tracks four and five in a place of safety, but only when it became apparent to the party in charge of the engine that the plaintiff was about to cross the .track in front of the engine. The instruction submitting to the jury, as a basis for recovery, this particular charge of negligence, without qualification, and without informing the jury as to the duty of the defendant, in respect to this matter, is prejudicial when we consider that the plaintiff, in his own testimony, showed that he was in a position of safety where there would be no duty, as a matter of law, upon the engineer to stop the train, up to the very moment
We think there was prejudicial error in submitting this charge of negligence to the jury, without the qualifications as hereinbefore explained. See Clemens v. C., R. I. & Pac. Ry., 163 Iowa, 499; Bruggeman v. Illinois Central Ry. Co., 147 Iowa, 187; Bourrett v. Chicago, North Western Ry. Co., 152 Iowa, 579.
For the error pointed out, we think the case ought to be —Reversed.