Bourrett v. Chi. & N. W. Ry. Co.

• Decision Date: 14 May 1909
• Citation: 121 N.W. 380
• Court: Iowa Supreme Court
• Parties: BOURRETT v. CHICAGO & N. W. RY. CO. ET AL.

121 N.W. 380

BOURRETT

v.CHICAGO & N. W. RY. CO. ET AL.

Supreme Court of Iowa.

May 14, 1909.

Evans, C. J., and McClain, J., dissenting.

Appeal from District Court, Woodbury County; F. R. Gaynor, Judge.

Action for damages resulting in a directed verdict and judgment thereon for defendants. The plaintiff appeals. Reversed.F. E. Gill, for appellant.

James C. Davis and Wright, Call & Sargent, for appellees.

LADD, J.

Bordering on the Missouri river, between Pierce and Douglass, south of Second street, in Sioux City, is the baseball park. Large numbers of people, varying from a few hundred to several thousand, attend the games. In going and returning they pass along Pierce and Douglass streets and freely over the 10 or more railroad tracks, running east and west immediately north of the park, between that and Second street. These are switching tracks, save a main track of the Chicago, Milwaukee & St. Paul Railroad Company, and possibly another of defendant. The entrance to the park is from Douglass street, near the northwest corner. Foul balls frequently passed over the inclosure of the park into the street or on the track space, and the boy who returned one of these balls was given as compensation for the service admission to see the game being played. In the afternoon of July 25, 1905, plaintiff, who was then nearly 16 years old, and one Soelsberg, some two years older, were at the fence on the west side of Douglass street, across from the park, with a view of gaining admission in this way. As a ball passed over, plaintiff started for it, running a little east of north and did not stop until he had “kind of stumbled” at the track, caught himself before falling, and as he raised saw a train of defendant on him coming from the west. He grabbed the iron on the east end of the east car, and held on until it had moved to a point 170 feet east of Douglass street, when he fell off and was injured.

The train was being backed at a speed estimated at 6 to 10 miles an hour without warning of its approach by sounding the bell or otherwise and without keeping a lookout, so that there is no serious controversy but that a jury might well have found defendant chargeable with negligence. See Booth v. Railway Company, 126 Iowa, 8, 101 N. W. 147. But it is equally clear that the plaintiff was guilty of contributory negligence. As the ball flew over, he started for it on a fast run toward the railroad tracks. True, he testified that there were “cars standing west of where those cars came from,” and but for this he would have seen; but he knew that these were switching tracks, and must have known that, even though cars were standing on one track, other cars might be moved on other tracks. Moreover, it is not clear how cars “west of where the train came from” could have obstructed his view of cars moving eastward from where those seen were standing. Again, he testified that, before he got to the car, he was thinking of the ball, and not expecting a train, and that when within five feet from the track on which the train was moving he glanced west and did not see it, that a box car standing just west of the track prevented him from seeing it; but he admitted in cross-examination that this car was west of Douglass street and did not then interfere with his vision, and that there was nothing to prevent him from seeing the train at that time had he looked. Manifestly the plaintiff recklessly ran upon the track without ascertaining in any adequate manner whether cars might be anticipated over the crossing. There were 10 tracks, used mostly for switching purposes, as he well knew, and the fact, if such it was, that cars were standing 30 feet west of Douglass street, furnished no ground for supposing others might not be moved on some of the other tracks. But it is argued that his attention was distracted by the ball. Doubtless this is so, but the danger of moving trains was perfectly apparent to him before starting for the ball, and that he was attracted by it into a place of danger will not exonerate him from the charge of negligence. The company was in no sense responsible for the passage of the ball, and it was the duty of plaintiff before following it over the tracks to look or listen for approaching trains at some point where he might reasonably ascertain whether any were coming toward the crossing. This he did not do. Though of immature years, the record leaves no doubt as to his capacity of comprehending the danger. Masser v. Railway, 68 Iowa, 602, 27 N. W. 776;Merryman v. Railway, 85 Iowa, 638, 52 N. W. 545;Carson v. Railway, 96 Iowa, 583, 65 N. W. 831. Before going on the track, even though in pursuit of a ball, he must be held bound to the exercise of reasonable precaution for his own safety. Yeager v. Railway Co., 94 Iowa, 46, 62 N. W. 672;Hinken v. Railway Co., 97 Iowa, 608, 66 N. W. 882;Payne v. Railway Co., 108 Iowa, 188, 78 N. W. 813;Crawford v. Railway Co., 109 Iowa, 433, 80 N. W. 519.

2. Appellant, however, invokes what is denominated in the books as the doctrine of “the last fair chance,” by contending that, notwithstanding plaintiff's negligence, defendant in the exercise of ordinary care should have discovered his peril and avoided the injury. The rule that contributory negligence will defeat recovery appears to have been first distinctly announced in Butterfield v. Forrester, 11 East, 60, though not then as a novel doctrine. Explanation of the grounds thereof as a legal principle is to be found in subsequent decisions. Perhaps this gradual development of the law as new conditions arose accounts somewhat for the treatment of the rule in Davies v. Mann, 10 M. & W. 546, as an exception to the general doctrine of contributory negligence. Though often so referred to in the decisions, it is not now generally regarded as exceptional, but as the means of ascertaining whether defendant's negligence is the sole proximate cause of the injury complained of. Indeed, the later text-books seem to have rejected the designation of the rule as that of “the last fair chance,” which has the merit of being conveniently descriptive, at least, and refer to it merely as defendant's subsequent negligence. In the cited case the owner of a donkey, who negligently turned it out upon the highway with its feet fettered, was allowed, notwithstanding his own negligence, to recover from a person driving along the highway who carelessly ran into and killed it. The ground of the decision, though not clearly expressed by the court, has been accurately stated, as follows: “The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered wholly responsible for it.” In Smith v. Railway, 114 N. C. 728, 19 S. E. 863, 923, 25 L. R. A. 287, the subject is fully discussed; the court concluding that: “It is simply a means of determining whether the plaintiff's negligence is a remote or proximate cause of the injury. Before the introduction of the rule, any negligence on the part of plaintiff which in any degree contributed to the accident was judicially treated as a proximate cause and constituted contributory negligence which barred recovery. * * * This was considered a harsh rule, as it left the plaintiff to bear all the damages, although he may have been but remotely and consequently, but slightly, in fault. The doctrine, however, was qualified by the ruling in Davies v. Mann, and it was determined that, although plaintiff was guilty of a want of ordinary care in contributing to the injury, yet this would not prevent him from maintaining an action if the defendant might have avoided the injury by the exercise of ordinary care on his part.” A like statement will be found in Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159.

When thus stated it is apparent that the rule constitutes no exception to the general doctrine of contributory negligence and does not permit one to recover in spite of contributory negligence, but merely operates to relieve the negligence of plaintiff, which would otherwise be regarded as contributory, from its character as such. This is accomplished by characterizing the negligence of defendant, if it intervenes between the negligence of the plaintiff and the accident, as the sole proximate cause of the injury, and the plaintiff's antecedent negligence as a condition or remote cause. If then the antecedent negligence of plaintiff be found merely a condition or remote cause, it cannot be contributory, since it is well established that negligence, to be contributory, must be one of the proximate causes. Since the effect of the application of the rule then is to strip from the negligence of plaintiff the attribute expressed by the word “contributory,” it follows that there can be no liability for defendant's subsequent negligence unless and until it has been definitely determined that there has been some breach of duty on the defendant's part intervening between the antecedent negligence of plaintiff and the accident. Manifestly, in order that defendant's negligence shall be the sole proximate cause, the plaintiff's negligence must have expended itself before the breach of defendant's duty complained of, for if, notwithstanding defendant's fraud, plaintiff's negligence continue to the instant of the accident, either the negligence of the parties is concurrent, or else plaintiff has had the last opportunity of avoiding the injury.

These views find support in Patterson's Railway Accident Law, 91, where it is said that: “The rule has been misunderstood and misapplied. It means only that negligence upon the part of plaintiff which bars his recovery from the defendant must have been a proximate cause of the injury, and that it is not a proximate, but only a remote, cause of the injury when the defendant, notwithstanding the plaintiff's negligence, might, by the exercise of ordinary care and skill, have avoided the injury. Thus stated, the rule is...