Bridenstine v. Iowa City Elec. Ry. Co.

• Decision Date: 11 December 1917
• Docket Number: No. 31573.,31573.
• Citation: 165 N.W. 435,181 Iowa 1124
• Parties: BRIDENSTINE v. IOWA CITY ELECTRIC RY. CO.
• Court: Iowa Supreme Court

181 Iowa 1124

165 N.W. 435

BRIDENSTINE

v.IOWA CITY ELECTRIC RY. CO.

No. 31573.

Supreme Court of Iowa.

Dec. 11, 1917.

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Action at law to recover damages on account of the death of plaintiff's intestate. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Henry Negus and A. E. Maine, both of Iowa City, for appellant.

S. K. Stevenson and Messer, Clearman & Olsen, all of Iowa City, for appellee.

WEAVER, J.

The petition alleges that on December 11, 1911, while the deceased, Rachael W. Springmire, was lawfully riding in a carriage on Bloomington street in Iowa City, and in the exercise of due care on her part, and while crossing the defendant's track at the point where Bloomington street intersects with Dubuque street, one of defendant's street cars operated by defendant's servants was negligently caused to collide with her carriage, throwing the deceased out upon the ground and inflicting upon her fatal injuries. The negligence charged is alleged to consist in the operation of the car at an unlawful, careless, and imprudent rate of speed, in failing to give any signal of the car's approach to the crossing, in failing to have a competent and skilled motorman in charge of the car, and in failing to have the same equipped with sand, and in failing to use proper care to discover the peril of the deceased in time to prevent the collision.

Answering the petition, the defendant denies the same generally, and further pleads that Rachael W. Springmire at the time of her decease was a married woman, having no separate or independent business or employment, and was engaged solely in her domestic and family duties as a housewife and mother.

In the original petition the plaintiff had claimed damages in the sum of $10,000, but thereafter, on November 24, 1914, he amended his claim by reducing it to $6,000, which sum, he says, is recoverable under the provisions of chapter 163 of the Acts of the Thirty-Fourth General Assembly. To this amendment defendant demurred as stating a new and different cause of action than was alleged in the original petition and that the same is barred by the statute of limitations. The demurrer was overruled, and defendant answered denying the petition as amended. It is also pleaded that the deceased at the time of the accident was riding with her son engaged with him in the pursuit of a common purpose or undertaking, that the son was intoxicated, and that while so engaged in this common purpose and by reason of their failure to exercise due care, and without any negligence on the part of defendant, the collision was occasioned.

The issues thus joined were tried to a jury, which returned a verdict for the plaintiff for $2,500, and judgment was rendered thereon for such amount, with interest at 6 per cent. from that date. Defendant's motion in arrest and for a new trial was overruled. Four days after the entry of judgment plaintiff filed a motion pointing out that the judgment as entered provided for interest from the date of its entry only, and asking that such entry be amended to include in the recovery interest computed from the date of the decease of the intestate. This motion was sustained, and the amount of the judgment was increased from $2,500 to $3,101.42.

I. We shall confine our attention to the alleged errors which have been argued on behalf of the appellant. The first of these is based upon the overruling of the defendant's demurrer to the amendment to the petition.

[1] The assignment of error is without merit. It was not necessary for plaintiff to specially plead the statute of the Thirty-Fourth General Assembly in order to have the benefit of its provisions. The cause of action stated in the original petition is the alleged death of the intestate by reason of defendant's negligence, and this cause of action is in no manner withdrawn or changed in the petition as amended, and the plea of the statute of limitations was properly overruled. If it requires any authority in support of a proposition so clear and evident on the face of the record, see Cahill v. Railroad Co., 137 Iowa, 577, 115 N. W. 216;Gordon v. Railroad Co., 129 Iowa, 747, 106 N. W. 177;Benson v. Ottumwa, 143 Iowa, 351, 121 N. W. 1065;Knight v. Railroad Co., 160 Iowa, 160, 140 N. W. 839;Basham v. Railroad Co., 157 N. W. 192.

II. It is the position of appellant that the deceased was guilty of contributory negligence as a matter of law in that she appears not only to have been wanting in the exercise of due care for her own safety, but that it also appears that her son, who was driving the carriage, was also negligent, and that his negligence is in law imputable to her.

As has already been mentioned, the collision occurred on the crossing of Bloomington and Dubuque streets. The car track is laid along the surface of Dubuque street which extends north and south, and the carriage in which deceased rode was moving east on Bloomington. The car in question was coming from the south northward and down grade. The two streets at the point of crossing are depressed below the general or natural surface of the ground.

[2] An inspection of the exhibits in evidence indicates that the elevation of the lot or block at the southeast corner of the intersection, together with well-grown shade trees planted upon the block and along the street lines, obscure to a material degree the view of Dubuque street to a person approaching on Bloomington from the west, and we think it cannot be said that such person is under all circumstances to be conclusively charged with negligence if he or she approaches the intersection without discovering a street car coasting rapidly down the grade from the south before reaching a point which commands a clear view in that direction.

[3] Much less can it be said as a matter of law that the deceased or her son was in duty bound to stop at any given distance from the track and ascertain whether a car was coming. They were in the rightful use of the street. Their right therein was of equal degree with that of the defendant to operate its cars thereon. Each was required to keep reasonable outlook to avoid collision, and if it was reasonably apparent that to go ahead was to invite danger of collision, it was the duty of the driver of the carriage to yield the way.

[4] On the other hand, it was the duty of the driver of the car to be watchful to know that a crossing over which he was about to pass was clear, and if he saw, or in the exercise of reasonable care ought to have seen, that a traveler on the street was using or about to use said crossing, and a collision was threatened, it was his duty to use every reasonable means at his command to stop his car or to so reduce his speed as to prevent it.

[5] It is also his duty in approaching a blind or obscure crossing where his view of the intersecting street is obstructed to have his car under such reasonable control that he may stop it or reduce its speed if any emergency requires it.

[6] Whether defendant's motorman did use reasonable care in these respects, and, on the other hand, whether the intestate and her son were negligent with respect to their own safety, we are well satisfied were questions for the jury. The evidence of defendant's neglect was abundant. The motorman as a witness admits that he knew that the bank prevented his seeing a team approaching on Bloomington street. Another motorman testified that they had strict orders from the defendant to operate the cars at high speed up Dubuque street to the crest of the grade south of this crossing, and then throw off the power and coast in order to save power, and that when coasting the car is ordinarily moving at from 18 to 20 miles per hour. The defendant's president says that the cars are geared to make a speed of 24 miles an hour. He further says that, when given nine points of power, the car when well started is going 24 miles an hour, and the motorman admits that when he passed over the crest and threw off the power it was under a pressure of nine points, and that the grade was sufficient so that “the car kept picking up speed as it went down.” One can hardly imagine a more efficient death trap than would be furnished by sending a car at this excessive speed over a crossing so obscured by banks or trees or other obstruction as to conceal the approach of a team coming out of the depression or cut of a cross street.

[7][8] The traveler upon the street could not be held to anticipate such misuse of the railway's right in the street, and even if the deceased or her son saw the car coming from the south, they could not be held as a matter of law to know that it was coming at such a speed as to threaten a collision on the crossing. The trial court did not err in refusing to hold that deceased was conclusivelyshown to have been guilty of contributory negligence.

Some of the authorities cited by the appellant on this feature of the case are those in which the injured person was a trespasser, and have no application to facts like those now under consideration; and none of the precedents relied upon are inconsistent with our holding in this respect.

[9] III. It is next objected that the doctrine of the last fair chance has no application to this case. Such is not our view of the situation. Even if it conclusively appeared (as it does not) that deceased or her son approached the crossing carelessly or negligently, the jury might well find that the motorman, had he been in the exercise of reasonable care, could have prevented the collision. He himself says that as soon as he saw the carriage he knew there was danger of collision, and tried to stop, but could not--a failure which the jury could properly infer was due to the fact that he had thrown off the power and was recklessly shooting down the grade without having his car under reasonable control. It does not appear that the deceased or her son after discovering their...