Allen v. Des Moines Ry. Co.
| Decision Date | 13 March 1934 |
| Docket Number | No. 42379.,42379. |
| Citation | 218 Iowa 286,253 N.W. 143 |
| Parties | ALLEN v. DES MOINES RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; O. S. Franklin, Judge.
This is an action brought by the administrator of the estate of Francis T. Allen, deceased, to recover damages resulting from a fatal injury sustained by the decedent by being struck and run over by the defendant's street car at the intersection of Forty-First street and Ingersoll avenue in the city of Des Moines, Iowa. The case was submitted to a jury. Jury returned a verdict for the plaintiff. Opinion states the facts.
Affirmed on condition.
Corwin R. Bennett, of Des Moines, for appellant.
Kelly, Shuttleworth & McManus and Fred C. Huebner, all of Des Moines, for appellee.
On the afternoon of September 25, 1930, Francis T. Allen, a boy of the age of eight years and eight months, was returning from school to his home. In order to reach his home it was necessary that he cross Ingersoll avenue at Forty-First street, in the city of Des Moines. Ingersoll avenue runs in an easterly and westerly direction. The distance between the property lines in the northerly and southerly direction on Ingersoll avenue is 100 feet. There are two sets of street car tracks between Fortieth and Forty-Second streets. They are located approximately in the center of the street. The street car tracks are separated from the pavement by a header or curbing. There is a curb that extends along each side of the north and south sides of the street car track. On the south side of Ingersoll avenue between Fortieth and Forty-Second streets, the distance between the south curb line to the curb line or header on the south side of the street car tracks is 19 1/2 feet. On the north side the distance is the same. The space in the north and south direction between the curb line and header, which is on the south side of the street car tracks, and the south rail of the south track is 3 1/2 feet.
On the occasion of this accident a street car was traveling on Ingersoll avenue, approaching the intersection at Forty-First street from the west, and, the record shows, the motorman had a clear and unobstructed view towards said intersection for more than a block. Francis Allen, with two of his boy friends, Raymond Poage and William McNally, was on his way home from school, which was a block or so south of Ingersoll avenue. The boys were scuffling and playing. They had been confined in the schoolroom all day and were working off some of the excess energy that had accumulated during the day. Young McNally intended to board the street car at Forty-First street and Ingersoll avenue, and the other two boys decided that they would see he did not board it. And thus they started scuffling and running around. When they reached Forty-First street McNally broke away from the other two and ran west on Forty-First street. Francis Allen and his friend took after McNally and chased him down the street some little distance. When they had reached a point approximately 40 or 50 feet west of the west line of Forty-First street they gave up the chase, and Francis Allen started back towards Forty-First street, running along the street car track until he reached the east side of Forty-First street and about the place where pedestrians cross the street railway crossing, when he turned to the north and was struck by the street car. He died a few hours later from the injuries he received.
Charles P. M. Allen, who is the father of Francis Allen, was appointed administrator of his estate, and commenced this action against the Des Moines Railway Company. The case was submitted to a jury. The jury returned a verdict of $5,750. In the time provided by law the appellant filed a motion for a new trial and exceptions to the instructions, which motion was overruled by the lower court. The appellant not being satisfied with the ruling of the lower court upon said motion, and the verdict of the jury, has appealed to this court.
[1] The appellant complains that the record does not support the first ground of negligence charged in the appellee's petition, which is failure on the part of the motorman to maintain a proper lookout.
This court in the case of Wilflin v. Des Moines City Ry. Co., 176 Iowa, 642, 644, 156 N. W. 842, 844, said:
It is the contention of the appellee that the motorman in this case did not keep that careful and constant lookout ahead and to the right and left which it was his duty to keep, under the foregoing decision. The record shows that the motorman had a clear and unobstructed view ahead for over a block. There is evidence in this record that these boys were playing in the street. A man driving an automobile, approaching from the west, saw them and stopped his automobile some 50 feet away from where the boys were, in order to prevent running into them. Francis Allen ran down the street to the west a distance of some 40 feet west of the west line of Forty-First street, and then turned and ran towards the east. There is evidence in this record that in running east he covered a distance of 96 feet, and during most of that time he was in plain view of the motorman, at least during the last block that he traveled before the accident occurred, and yet there is evidence in the record that the motorman did not reduce the speed of the street car or apply the brakes until the moment that the car struck Francis Allen. Certainly, in the face of such record the jury had a right to find that the motorman either was not keeping a proper lookout or he failed to heed that which he could have seen had he looked. The lower court was justified in submitting, as one of the grounds of negligence, failure to keep a proper lookout.
[2] Appellant also complains that it was error to submit to the jury the second ground of negligence in appellee's petition, which is that the street car was traveling at an excessive and negligent rate of speed. In the case of Altfilisch v. Wessel, 208 Iowa, 361, 367, 225 N. W. 862, 865, this court said:
In the case of Livingstone v. Dole, 184 Iowa, 1340, at page 1350, 167 N. W. 639, 643, this court said: “Necessarily what speed will be adjudged negligent depends on the local surroundings, the use being made of the street, and the like.”
And so, in the case at bar, the motorman in charge of the appellant's street car saw, or in the exercise of reasonable care should have seen, the decedent and the other boys playing in the street, for he had a clear and unobstructed view for over a block. And yet he proceeded into the intersection at Forty-First street at a rate of speed which some witnesses testified to was between 30 and 35 miles an hour. And there is evidence that he did not apply the brakes or make any effort to stop the street car until after the street car had struck Francis Allen.
In the case of Johnson v. Abbott's Alderney Dairies, 295 Pa. 548, 145 A. 605, “when children are on the street, or in the act of crossing, plainly visible, his obvious duty on approaching the spot is to bring his car under such control as the circumstances demand, so that, responsive to the child's capricious acts, he can stop to avoid injury.”
And in the case of Doran v. C. R. & M. City Ry. Co., 117 Iowa, 442, 446, 447, 90 N. W. 815, 817, the court said: ...
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