Bruhn v. Fort Dodge Street Railway Co.

• Decision Date: 13 March 1923
• Docket Number: 35080
• Citation: 192 N.W. 296,195 Iowa 454
• Parties: WALTER BRUHN, Administrator, Appellant, v. FORT DODGE STREET RAILWAY COMPANY et al., Appellees
• Court: Iowa Supreme Court

192 N.W. 296

195 Iowa 454

WALTER BRUHN, Administrator, Appellant, v. FORT DODGE STREET RAILWAY COMPANY et al., Appellees

No. 35080

Supreme Court of Iowa, Des Moines

March 13, 1923

Appeal from Webster District Court.--R. M. WRIGHT, Judge.

THIS is an administrator's action for damages for the wrongfully caused death of his intestate. The intestate was a little boy five years of age. One of the cars of the defendant street railway company ran over him, and thereby inflicted fatal injury. The car was operated by defendant Fallon, as motorman and conductor. The action is predicated upon the alleged negligence of Fallon. The defense was a general denial. There was a general verdict for the plaintiff, and certain special findings that were in favor of defendants. The trial court entered judgment upon the special findings, and dismissed the petition. Plaintiff appeals.

Affirmed.

Mitchell & Files, for appellant.

Dyer Jordan & Dyer, Price & Burnquist, and Healy & Breen, for appellees.

EVANS J. PRESTON, C. J., STEVENS and ARTHUR, JJ., concur. FAVILLE J., not participating.

OPINION

EVANS, J.

I.

The accident occurred on April 11, 1921, in the city of Fort Dodge. The defendant street railway company operated a line of street railway in said city. Each car was manned by one man, who acted as motorman and conductor. Fallon was one of these. He made a round trip every hour. The round trip consisted in passing from the west end to the east end back again. Fallon had just arrived at the west end a few minutes before 10 o'clock A. M. What is called the "west end" of the line is also a south end. The terminal at this end is on a north and south street, known as Fourth Street. The railway line extends south thereon to Third Avenue, and stops adjacent to a railway depot. At this terminal, the car stood in a north and south direction, the south end of the car being its front end, upon arriving at this terminal, and being its rear end upon departure. Fallon arrived at this terminal with one passenger, which he there discharged. For the purpose of reversing his direction, it was his duty then to reverse the trolley pole and to transfer the controller and his cash box and his seat from the south end to the north end. This duty he performed. In changing his trolley pole, he passed first to the north end and then alongside of the car to the south end. He then boarded the car at the west door of the north end, and made the inside changes. He thereupon sounded his gong, as contended, and started the car, only to discover, a moment later, that he had run over the child. This child, as appears from plaintiff's evidence, had taken a position upon the north fender of the car and on its east side, and was in that position when the car started. The story of the accident is very harrowing, and is not conducive to the exercise of cold judgment.

The plaintiff specified six grounds of negligence. They were all reducible to the general allegation that Fallon was negligent in failing to discover the child in his perilous position, and in failing to protect him in such position, in that he started his car without sounding the gong, and without looking to see whether anyone was in front of his car. The only substantial dispute of fact appearing in the evidence was whether Fallon sounded his gong. There is no direct evidence that Fallon saw or knew of the presence of the child. If that fact might be inferred from the circumstance that he could have discovered him, it is yet eliminated from the case by the special finding of the jury that he did not see the child. It was also the special finding of the jury that he sounded the gong. The only direct observer of the accident was plaintiff's witness Lloyd, who was approaching the car from the north, and was a half a block away when he saw the child sitting on some portion of the fender, and immediately thereafter saw the start of the car and the disappearance of the child thereunder. The same witness testified that, after the accident, he boarded the car and took a position in front of the north window and looked out therefrom, and was barely able to see the fender through such window, only the edge of the same being visible. This witness was some inches taller than Fallon, who testified that the fender was not visible to him from his place behind the controller.

It will be noted that the tender years of the child eliminate the question of contributory negligence. So far as the negligence of Fallon is concerned, in failing to discover the perilous position, the question of decedent's age is not controlling. The measure of duty of care to discover the peril and to protect the party exposed thereto was precisely the same as it would have been if the injured party had been adult. The fender in question was so attached to the end of the car that it could be extended forward or pushed backward under the car. At this time, the fender extended forward about 18 inches. Just what its position was underneath the car is not clear from the record, nor is there any showing of the exact place on the fender taken by the child, except that it was on the east side. How far back or underneath the child was, does...