Carr v. Inter-Urban Railway Co.

• Decision Date: 21 March 1919
• Docket Number: 32655
• Citation: 171 N.W. 167,185 Iowa 872
• Parties: BERTHA CARR, Administratrix, Appellant, v. INTER-URBAN RAILWAY COMPANY, Appellee and Cross-Appellant
• Court: Iowa Supreme Court

171 N.W. 167

185 Iowa 872

BERTHA CARR, Administratrix, Appellant, v. INTER-URBAN RAILWAY COMPANY, Appellee and Cross-Appellant

No. 32655

Supreme Court of Iowa, Des Moines

March 21, 1919

Appeal from Polk District Court.--CHAS. A. DUDLEY and THOMAS J GUTHRIE, Judges.

PLAINTIFF who is the surviving widow of John T. Carr, who was killed about 6 o'clock A. M. on the morning of December 1, 1916 while walking north on East Thirty-third Street, near the intersection thereof with Cleveland Avenue in the city of Des Moines, brings this action, as administratrix of his estate. When about on Cleveland Avenue, deceased met a southbound street car, and stepped from between the east and west tracks of defendant onto the track. When somewhere near the north side of Cleveland Avenue, he was struck by a northbound interurban car, and fatally injured. A trial was had in the district court, resulting in a verdict for plaintiff. Upon motion of defendant, the verdict was set aside, and a new trial granted, on account of errors in two instructions. Both parties appeal. The questions presented do not call for a detailed statement of the evidence. Plaintiff, having first completed her appeal, is denominated the appellant.

Affirmed.

Clark, Byers & Hutchinson and R. P. Thompson, for appellant.

W. H. McHenry and A. B. Howland, for appellee and cross-appellant.

STEVENS, J. LADD, C. J., EVANS and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

I.

On account of the death of the trial judge before ruling upon defendant's motion for a new trial, same was passed upon and sustained by Honorable Thomas J. Guthrie, one of the judges of the Polk County district court. It was sustained upon the ground that prejudicial error was committed by the court in two of its instructions to the jury. Argument of counsel, however, covers numerous exceptions to these instructions taken at the time of the trial, but not referred to by the court in its ruling upon the motion.

Instruction No. 7, which the court, in passing upon the motion for new trial, held to be erroneous, related to the doctrine of the "last clear chance." In this instruction, the court charged that, if the motorman saw, or, by the exercise of reasonable diligence, could have seen decedent in time to have warned him of the approaching car, in time to have, by the exercise of reasonable care upon his part, so controlled his car as to prevent the accident, and he failed to do so, defendant was guilty of negligence, even though decedent was negligent in going upon the track.

Counsel for appellee contends that the evidence did not justify the giving of an instruction upon this point, and also that the instruction given does not correctly state the law. In view of the conclusion reached herein, and the possibility of a retrial, we refrain from discussing or expressing an opinion as to the sufficiency of the evidence to justify the giving of an instruction upon this point, and proceed to consider counsel's exceptions to the court's statement of the law. The "last clear chance" doctrine, as adopted in this state, has often been stated and defined by this court. In McCormick v. Ottumwa R. & L. Co., 146 Iowa 119, 124 N.W. 889, the court said:

"'The party who has the last opportunity of avoiding an accident is not excused by the negligence of anyone else. His negligence, and not that of the one first in fault, is the proximate cause of the injury.' Again, it has been stated in this way: 'Where both parties are negligent, the one that has the last clear opportunity to avoid the accident, notwithstanding negligence of the other, is solely responsible for it; his negligence being deemed the direct and proximate cause of it.' The rule is bottomed sometimes upon one proposition, and sometimes upon another, and sometimes upon both. The first is that, in such cases, defendant's negligence, instead of being concurrent, is the sole and proximate cause of the injury; and the other is that plaintiff's negligence is no defense to wanton or willful negligence. When bottomed solely upon the last proposition, to wit, wantonness or willfulness, it is apparent that something more than the want of ordinary care is necessary. The injury must either be willful, or, as said in some cases, be due to such gross negligence as that wantonness or willfulness may be inferred. When bottomed upon the former proposition,--that is to say, upon the doctrine that defendant's negligence, being last in point of time, is the proximate, and plaintiff's precedent negligence the remote, cause,--neither wantonness or willfulness nor their equivalent need be shown. But it must appear in such cases that plaintiff's and defendant's negligence are not concurrent in point of time. If concurrent in this sense, then there can be no recovery, save where the rule of comparative negligence obtains."

Again, in Wilson v. Illinois Cent. R. Co., 150 Iowa 33, at 41, 129 N.W. 340:

"The doctrine of last fair chance presupposes negligence on the part of the party injured, and proceeds upon the theory that, notwithstanding this negligence, if the other party, being cognizant of that negligence and of the peril in which the party had placed himself, failed to take the necessary precautions to avoid injuring him, he is liable on the theory that he had a fair chance to avoid the catastrophe by the use of ordinary care, and his failure to exercise it is, in such cases, the proximate cause of the injury. It is defendant's subsequent negligence, after discovering the peril, differing in every essential from the mere continuation of the original negligence, for which he is held liable." See also Purcell v. Chicago & N.W. R. Co., 117 Iowa 667, 91 N.W. 933; Bourrett v. Chicago & N.W. R. Co., 152 Iowa 579, 132 N.W. 973; Wolfe v. Chicago G. W. R. Co., 166 Iowa 506, 147 N.W. 901; Doherty v. Des Moines City R. Co., 137 Iowa 358, 114 N.W. 183.

It will be observed, as stated above, that the instruction charged the jury that, if the motorman in fact saw deceased in a position of peril, or if, by the exercise of reasonable diligence, he could have seen him in a position of peril, in time to have avoided the injuries, and failed to do so, then, notwithstanding it also found that deceased was negligent, its verdict should be for plaintiff,--thus making ability to see the equivalent of seeing.

Mr. Justice Sherwin, speaking for the court, in Bourrett v. Chicago & N. W R. Co., supra, said:

"The doctrine of last chance is founded on actual knowledge of the plaintiff's negligence, and this court has consistently so held in all cases where the facts were similar to the facts presented here, and such holding has been uniform in nontrespass as well as in trespass cases."

And again, in Wilflin v. Des Moines City R. Co., 176 Iowa 642:

"Of course, the motorman must have seen the person in peril on the track ahead in time to have avoided a collision."

See, also, Wolfe v. Chicago G. W. R. Co., supra, and Doherty v. Des Moines City R. Co., supra.

It will thus be seen that the doctrine of "last clear chance" presupposes that the engineer or motorman had actual knowledge of the injured person's peril, in time, by the exercise of ordinary care, to have avoided the accident. This is equally true whether the injuries complained of were received upon a steam railroad or street railway. No distinction exists in this respect.

Counsel for appellant cites numerous of our decisions which, he contends, sustain the instruction; but, upon careful analysis, they will be found not to do so. In Welsh v. Tri-City R. Co., 148 Iowa 200, 126 N.W. 1118, the first of the cases cited and relied upon by appellant upon this point, the instruction, although not set out in the opinion, apparently was similar to the instruction under consideration. It was sustained upon the theory that the evidence tended to show that the motorman in fact...