Bradley v. Interurban Ry. Co.

• Decision Date: 25 June 1921
• Docket Number: 34000
• Citation: Bradley v. Interurban Ry. Co., 191 Iowa 1351, 183 N.W. 493 (Iowa 1921)
• Parties: CHARLES F. BRADLEY, Appellee, v. INTERURBAN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

183 N.W. 493

191 Iowa 1351

CHARLES F. BRADLEY, Appellee, v. INTERURBAN RAILWAY COMPANY, Appellant

No. 34000

Supreme Court of Iowa, Des Moines

June 25, 1921

REHEARING DENIED OCTOBER 1, 1921.

Appeal from Dallas District Court.--H. S. DUGAN, Judge.

ACTION at law, to recover damages for personal injury. There was a trial to a jury, a verdict and judgment for the plaintiff and the defendant appeals.

Affirmed.

W. H McHenry, Corwin R. Bennett, and White & Clarke, for appellant.

Stipp, Perry, Bannister & Starzinger, for appellee.

WEAVER, J. EVANS, C. J., PRESTON and DE GRAFF, JJ., concur.

OPINION

WEAVER, J.

The plaintiff was injured in a collision between an automobile in which he was riding and one of the defendant's cars, upon a highway crossing in the city of Des Moines. The circumstances under which the collision occurred are not the subject of much controversy. The plaintiff is a resident of Perry, Iowa, and is by occupation a railway conductor upon the Chicago, Milwaukee & St. Paul Railway. On the day in question, he had been called to Des Moines, to attend the funeral of a brother. The funeral was appointed to be held at a chapel in the main part of the city at 3 o'clock P. M. Plaintiff arrived in the city in time to take the noon meal down town. Shortly after noon, he accepted the invitation of his brother-in-law, one Wilson, to ride with him and one or two other relatives to the home of the deceased, and thence to the funeral. The auto was owned by Wilson and driven by him. It was well filled with members of the family: all the seats appear to have been occupied. The plaintiff sat on a small or "jump" seat behind the front seat in which were the driver and another. In the rear seat were two ladies. The course of the auto took the party west on New York Avenue. The defendant's railway track crosses this avenue diagonally between Fourth and Sixth Streets; and, as the Wilson party approached from the east and undertook to make this crossing, the defendant's train or car, moving from the northwest, arrived at what is alleged to have been an excessively high and negligent rate of speed, and came into collision with the auto, throwing it from the track. In that collision, the plaintiff was very seriously injured. The weather, at the time of the accident, was rainy or misty, and the curtains of the car were down. The street at this point is one upon which there is much traffic, and the defendant railway company was at that time operating 56 daily trains over the crossing. That the view of the tracks by persons using the highway from the east was more or less obscured by buildings and other obstructions is the claim of the plaintiff and his witnesses; but this is denied by the appellant. The alleged negligence charged by plaintiff to the defendant is as follows: (1) The defendant's car was running too fast, and was not under control; (2) no signal or warning was given of its approach to the crossing; and (3) no gates or flagmen were maintained at the crossing.

The defendant specifically denies each of the several allegations of negligence, and avers that plaintiff himself was guilty of negligence barring his recovery of damages. The trial court submitted the case to the jury on each of the issues presented by the pleadings, and a verdict was returned for the plaintiff in the sum of $ 10,000. From the judgment entered on such verdict this appeal has been taken.

I. The first and most earnestly argued proposition in support of the appeal is that the plaintiff should be held chargeable with contributory negligence as a matter of law. The argument, stated briefly, follows along this line: First, that, although plaintiff was an invited passenger or guest in a car of which he had neither ownership nor control, yet he was still bound to exercise reasonable care for his own safety; and second, that reasonable care required him, as a matter of law, to observe the crossing to discover if a car was approaching on defendant's track, and if there was one, it was further his duty, as a matter of law, to give the alarm to the driver, and cause him, if possible, to stop until the danger had passed; and that, failing so to do, he cannot recover.

With the first proposition, that the invited guest or passenger is not absolved from his obligation to use reasonable care for his own safety, there is no room for dispute; but this is as far as the court can keep step with counsel. The leap from the statement of duty of reasonable care for one's own safety to the conclusion, as a matter of law, that the invited guest is negligent if he fails to seen an impending danger in time to interfere and prevent it, is entirely too far. The question as to what is reasonable care in such an emergency is peculiarly a question for the jury. Within reasonable limits, the invited passenger in an automobile may reasonably and lawfully rely on the skill and judgment of the driver. He cannot physically interfere with the driver's control of the car, without peril of disaster. He may, under proper circumstances, sound an alarm, if he sees danger ahead of which the driver seems oblivious; but even then he must still, to some extent, place his reliance upon the driver to avoid it. There is no rule of law which obliges him to forcibly seize the steering wheel and wrest it from the hands of the owner, or to jump from the rapidly moving vehicle to certain injury or death. The appearance of danger of this character in almost every case comes in an instant of time; the peril is immediate, imminent; and, if a collision occurs, the destruction is accomplished in a twinkling. The evidence in this case shows that the plaintiff had no acquaintance with the crossing or its surroundings, and did not know of its existence until just as the car reached the track; that he was riding in the middle of the car, his view to the front being necessarily obscured by the driver and another person sitting in front. He did discover the crossing as he approached it closely, and almost simultaneously caught sight of defendant's car, and immediately gave an outcry. The driver appears to have also seen the danger at the same moment, but was unable to stop the auto. The plaintiff, a practical railroad man, says that defendant's car swept around the curve and over the crossing at a rate of 35 miles an hour, and in this he is corroborated by others; and, while appellant's counsel contend flatly that the crossing and its approach were clear, open, and unobstructed to the view of persons approaching from the east, the evidence is ample to support a finding by the jury that at this point defendant's line swings in a curve to the northwest, and that the view to the westbound traveler on the street is materially obscured by various structures, until he reaches the tracks or enters thereon. Counsel would avoid the effect of...