La Barge v. Union Electric Co.
| Decision Date | 10 June 1908 |
| Parties | JOHN F. LA BARGE, as Administrator of the Estate of AUGUST LA BARGE, Deceased, Appellee, v. THE UNION ELECTRIC COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Dubuque District Court.--HON. M. C. MATTHEWS, Judge.
ACTION at law to recover damages for the death of plaintiff's intestate, alleged to have been killed by reason of the negligence of the defendant. Judgment for plaintiff, and defendant appeals.
Affirmed.
Hurd Lenehan & Kiesel and Matthews & Frantzen, for appellant.
T. J Fitzpatrick and M. J. Wade, for appellee.
The appellant owns and operates a double track electric street railway, at the place where the accident occurred, in the city of Dubuque, Iowa. On July 13, 1902, August La Barge was a passenger on an open or summer car moving north along the east track on Couler avenue. The car seats extended transversely, leaving no aisle or passageway down the middle, the passengers entering the space between the seats directly from the footboard extending along the side of the car. The sides of the car were not inclosed, except by upright posts erected at the ends of the seats. On the outside of these posts there were attached perpendicular handholds or bars for the convenience of passengers in boarding or alighting from the car. While moving northward, a hinged or movable rail or guard was let down on the left side of the car, requiring passengers to enter and depart from the east footboard, and thus avoid danger of collision with cars moving south on the west track. This rail or guard when in place was a little less than three feet above the car floor, and with the posts above described constituted the only barrier or inclosure on that side. The deceased entered the car from the east side, and sat down at the west end of one of the seats. Shortly afterward, the car being full to crowding, deceased arose, and, giving his seat to a lady, stood up in the narrow space in front of the place where he had been sitting. Standing there with his back to the west, he appeared to be supporting or steadying himself against the guard rail and post, talking with some of his fellow passengers. In the course of the conversation something of an amusing nature was said or done, and deceased in the act of laughing threw his head back so that it extended a few inches beyond the outside of the post near which he was standing. At the instant of this movement on his part he was struck upon the head by the post or handrail of another car moving rapidly southward on the west track, and fatally injured. The plaintiff charges the defendant with negligence in constructing its two tracks so close together that the cars moving thereon in an opposite direction would be separated by a space of a very few inches, thereby exposing passengers to great danger of injury, especially when the cars were being operated at high speed. Other allegations of negligence were made, but not submitted to the jury by the trial court, and we need not here set them out. The jury returned a verdict for plaintiff, assessing damages in the sum of $ 3,000.
The appellant in argument rests its demand for a reversal on the single proposition that, upon the admitted and undisputed facts, the plaintiff was not entitled to recover, and the jury should have been so instructed. As this position taken by the appellant requires us to assume the truth of all matters which the plaintiff's evidence fairly tended to establish, we may say that, in addition to the facts hereinbefore stated, it was shown that the two tracks of the appellant's road at the place of the accident are in such proximity that, with two cars standing thereon at rest, the distance between them would be about eleven inches. The tracks were somewhat uneven, the rails being depressed at the joints, and while this fact was not submitted to the jury as a ground of negligence, we think it is still a proper matter to be considered, as bearing upon the question whether the tracks were too close together to be operated with safety. It is a matter of common observation that car bodies, owing to their weight, size, and manner of construction, have some tendency to rock and sway upon their trucks while in rapid motion, and that such tendency becomes more marked upon tracks which are rough or uneven. The testimony of the several witnesses of the accident is to the effect that at the time the deceased was struck his head was thrown back not to exceed a distance of three to six inches from the outer edge of the post by which he stood, and if this be true, it would seem to indicate that in passing the two cars so swayed or rocked inward that the space between them was reduced to a very narrow margin.
That it is evidence of negligence to construct parallel tracks so close together for the...
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