Christy v. Des Moines City Railway Co.
| Decision Date | 18 January 1905 |
| Citation | 102 N.W. 194,126 Iowa 428 |
| Parties | JOSEPH M. CHRISTY, AND E. M. STEDMAN, Appellants, v. DES MOINES CITY RAILWAY CO |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.-- HON. WM. H. MCHENRY, Judge.
ACTION for damages resulting in a verdict and judgment for defendant. The plaintiffs appeal.-- Reversed.
Reversed.
Carr Hewitt, Parker & Wright and C. C. & C. L. Nourse, for appellants.
N. T Guernsey, for appellee.
The defendant operates a street railway on Ninth street in Des Moines. The plaintiff, accompanied by a niece, and driving a span of three year old colts hitched to a cutter, was approaching the track from the east on State street. In crossing the cutter was struck by one of defendant's cars coming from the south, and demolished. The plaintiff was permanently injured, and one of the horses so disabled that it was subsequently shot. The city ordinances prohibited the defendant from moving its cars at a higher speed in the residence portion of the city than twelve miles per hour. Considerable evidence tended to show that this one was moving at the rate of fifteen to twenty miles per hour, and if so, the circumstances were such that it might have been found that, had the speed not exceeded that allowed by ordinance, the collision would not have occurred. The jury specially found that, as the car approached the street intersection, its speed did not exceed eight miles per hour. The motorman, corroborated somewhat by the conductor, testified that he slowed the car down to about four miles per hour, that Christy stopped his team, and, as he turned their heads, as if to drive to the south around the car, it started again, when the team became frightened, and lunged in a northwesterly direction in front of the car. A more particular statement is not essential to an understanding of the questions raised.
I. Appellant contends that the first, fourth, and eighth paragraphs of the court's charge are inconsistent, and because thereof tended to mislead and confuse the jury. In the first it is said that the burden of proof is on plaintiff to establish three things: It will be observed that upon the failure to find that plaintiff was free from any negligence a verdict for defendant is directed. The fourth instruction enumerated the grounds of negligence alleged in the petition.
In approaching the crossing of State street and Ninth street without ringing the bell or gong, or making any other signal; by running over said crossing at the time at a great, dangerous, and unlawful rate of speed, and at a rate of speed greater than twelve miles per hour; in failing to keep a lookout for persons passing and repassing upon the said streets; in failing to stop the said car after the defendant's motorman saw the plaintiff approaching the said crossing, and in not having stopped the car after the said motorman saw the danger and peril of the plaintiff.
The undisputed facts are then recited, and the court proceeds:
If, therefore, you find from the evidence that the defendant, by its employes in charge of said car, approached the said crossing without ringing a bell or gong or giving any other signal of its approach; that said car was at the time running over said crossing at such a rate of speed as to endanger the lives of persons traveling over the same, or at a rate of speed greater than twelve miles per hour; that its employes in charge of the car failed to slow up the said car before reaching the said crossing; and if you further find that the defendant's employes in charge of the said car in any or all of the said particulars, under all the circumstances surrounding them at the time, did not exercise reasonable and ordinary care in and about the management of the said car while approaching and passing over said crossing -- then you will be warranted in finding that defendant was negligent; and if, by reason of such negligence, you further find that plaintiff sustained injury, without fault or negligence on his part, which directly contributed to said injury, then you will find for the plaintiff. But, if you fail to so find, then your verdict will be for defendant.
Thus, after repeating the four grounds of negligence, the last is entirely eliminated from the hypothetical statement of facts, and the jury instructed, upon failure to find any one of the other three, or freedom from negligence on the part of plaintiff, "your verdict will be for the defendant." It may be that the word "verdict" was intended in the sense of "finding," and what was meant was verdict for defendant as to the particulars previously mentioned. But it is not so limited, nor is this the necessary import of the language. In the twentieth instruction attention is directed to the forms of verdict attached, designated as verdicts, and in the instruction following the final conclusion is referred to as a verdict. The jury might have concluded that "verdict," as found in the above instructions, had reference to the determination of the case by them, and to be expressed in one of the forms accompanying the charge; and, if so, these paragraphs were inconsistent with the eighth instruction, in which the jury was advised that:
If, under all the evidence and the foregoing instructions, you find that the plaintiff was negligent, still the defendant cannot avoid liability, if you further find from the evidence that the plaintiff at the time in question was in a perilous position, and that the defendant's employes in charge of the said car saw the plaintiff, and knew that he was in such perilous position, or might have known he was in peril by the use of ordinary care after he saw him, and thereafter failed to use ordinary care to stop the car and prevent the injury of the plaintiff; and if you further find that by the use of ordinary care defendant's employe in charge of the said car, under such circumstances, could have avoided any injury which you find the plaintiff may have sustained, then the plaintiff will be entitled to recover, and you will find for the plaintiff; but, if you fail to so find upon this part of the case, you will find for the defendant.
True the instructions are to be read together,...
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Christy v. Des Moines City Ry. Co.
... ... H. McHenry, Judge.Action for damages resulting in a verdict and judgment for defendant. The plaintiffs appeal. Reversed.[102 N.W. 195]Carr, Hewitt, Parker & Wright and C. C. & C. L. Nourse, for appellants.N. T. Guernsey, for appellee.LADD, J.The defendant operates a street railway on Ninth street in Des Moines. The plaintiff, accompanied by a niece, and driving a span of three year old colts hitched to a cutter, was approaching the track from the east on State street. In crossing the cutter was struck by one of defendant's cars coming from the south, and demolished. The ... ...