Barboe v. Sioux City Serv. Co.

• Decision Date: 25 October 1927
• Docket Number: No. 38382.,38382.
• Citation: 215 N.W. 740,205 Iowa 1074
• Parties: BARBOE v. SIOUX CITY SERVICE CO. ET AL.
• Court: Iowa Supreme Court

205 Iowa 1074

215 N.W. 740

BARBOE

v.SIOUX CITY SERVICE CO. ET AL.

No. 38382.

Supreme Court of Iowa.

Oct. 25, 1927.

Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.

Action for damages for personal injuries caused by the plaintiff's being struck by a street car operated by the defendant. At the close of the plaintiff's testimony, the trial court sustained the defendant's motion for a directed verdict, and the plaintiff appeals. Affirmed.Naglestad, Pizey & Johnson, Robert B. Pike and Larned F. Brown, all of Sioux City, for appellant.

Kindig, Stewart & Hatfield, of Sioux City, for appellees.

FAVILLE, J.

Fourth street in Sioux City runs east and west. It is intersected at right angles by Nebraska street. The intersection of said streets is in the business center of the city, and buildings are constructed on all the lots adjacent thereto. Each of said streets is 80 feet in width from building line to building line, and 52 feet from curb to curb. The appellee company has a double track on Fourth street and operates thereon street cars passing both east and west. The north rail of the north track is 18.8 feet from the curb. About 7 o'clock on the morning of the 5th day of January, 1926, the appellant approached the intersection of said streets, walking south on the west side of Nebraska street, intending to pass over Fourth street to his work, which was a block farther south. His testimony is to the effect that before he left the curb on the north side of Fourth street he looked east down Fourth street and did not see any street car approaching, and that he started to cross said street. He was struck by a street car approaching from the east, but was unable to relate just how the accident happened.

[1] But one question is presented that requires consideration on this appeal, and that is whether or not the appellant was guilty of contributory negligence, as a matter of law. Under our familiar rule, it is our duty to construe the evidence in the light most favorable to the appellant. The witness Eastman testified, in substance, that he was on the north side of Fourth street the morning of the accident, about four blocks east of Nebraska street, when he heard the 7 o'clock whistle blow; that he proceeded westerly on Fourth street toward Nebraska street; that a street car overtook him and passed him, going west on Fourth street; that he started to run after the car and when it came to the corner of Nebraska and Fourth streets it did not make a full stop, and that it picked up speed as it left the corner and went across the intersection; that he saw the appellant struck by the car at the intersection. He testified that no gong was sounded and no warning given, and that he did not see the appellant until the street car hit him. There is also evidence tending to show that at the time the car struck the appellant it was running at a speed of about 18 or 20 miles an hour. At the time that Eastman saw the car strike the appellant he was about 100 feet away. It appears that the appellant was familiar with the street, having crossed it every day for many years. The street was icy, and the morning was somewhat cloudy and dark, and twilight did not begin until 7:22 a. m.

[2] Every case involving a ruling on a motion for a directed verdict on the ground of contributory negligence must rest upon its own facts, and precedent can be of but little value. The rules of law governing the case are familiar. We have often declared that the rule of care required of one about to cross the track of a railway operating heavy trains by steam at a high rate of speed does not apply with equal rigidity to the crossing of a street railway track, where pedestrians and travelers have a right to be. McCormick v. Ry. & Light Co., 146 Iowa, 119, 124 N. W. 889;Orr v. Railroad Co., 94 Iowa, 426, 62 N. W. 851;Perjue v. Light & Gas Co., 131 Iowa, 710, 109 N. W. 280;Beem v. Tama & T. Electric Railway & Light Co., 104 Iowa, 565, 73 N. W. 1045;Barry v. Burlington Ry. & Light Co., 119 Iowa, 62, 93 N. W. 68, 95 N. W. 229;...