Claar Transfer Co. v. Omaha & Council Bluffs St. Ry. Co.

• Decision Date: 16 March 1921
• Docket Number: 32630
• Parties: CLAAR TRANSFER COMPANY et al., Appellants, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY et al., Appellees
• Court: Iowa Supreme Court

181 N.W. 755

191 Iowa 124

CLAAR TRANSFER COMPANY et al., Appellants, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY et al., Appellees

No. 32630

Supreme Court of Iowa, Des Moines

March 16, 1921

Appeal from Pottawattamie District Court.--O. D. WHEELER, Judge.

ACTION to recover damages for injury to auto truck and contents thereof, caused by the alleged negligence of defendants. Directed verdict for defendants, and judgment entered against plaintiff for costs. Plaintiff appeals.

Affirmed.

Kimball & Peterson and A. G. Kistle, for appellants.

Tinley Mitchell, Pryor & Ross, for appellees.

DE GRAFF, J. EVANS, C. J., PRESTON and ARTHUR, JJ., concur. WEAVER, J., dissents as to Division I.

OPINION

DE GRAFF, J.

The two primary propositions relied upon for reversal are: (1) That the contributory negligence of the plaintiff was a question of fact for the jury; (2) that the doctrine of "last clear chance" should have been submitted to the jury.

It appears from the evidence that, on February 17, 1916, about 7:15 A. M., one of the employees of plaintiff was driving a truck eastward over the Missouri River toll bridge between Council Bluffs and Omaha. The truck weighed about 8,000 pounds, and was carrying a load of equal weight. At some distance west of the toll house, it came into collision with one of the street cars of the defendant railway company which was moving westward along its single track on the south line of said bridge. By the collision and impact the truck was pushed in a southwesterly direction and off the bridge, causing it to fall a distance of about 100 feet, and practically destroying it and its contents. The bridge belonged to the defendant Omaha & Council Bluffs Railway & Bridge Company, as do the tracks and the equipment of the street railway, but it was maintained and operated by the defendant Omaha & Council Bluffs Street Railway Company. This bridge was used, not only as a street car bridge, but also as a wagon bridge and a foot passenger bridge. The sidewalk for pedestrians was constructed along the north side of the bridge, and between the sidewalk and the driveway for wagons was a guard rail. The wagon driveway was about 17 feet in width. South of the wagonway was the street car track, and then a space of about two feet, and another guard rail. The car track and vehicle passageway are paved with creosote blocks, and are about 25 feet in width. The bridge, at the point of the accident, is practically level for several hundred feet on either side. At the time in question, and at the place where the accident occurred, there was a heavy veil of smoke across the bridge, about 70 or 80 feet in width, which obstructed the view of a person coming or going on either side of it. This smoke screen was caused by locomotives or by some manufacturing establishments. The smoke was being blown across the bridge from the north by a light breeze.

But one witness on the trial (Hoffman) saw the truck, prior to its actual contact with the street car. Hoffman was walking across the bridge to his work, at the time. He testified:

"I passed the truck at about the time that I was emerging from the cloud of smoke. The truck was astride of the north rail of the track, at the time it entered the smoke. At this point, I could not see clear to the end of the bridge, but only as far as the top of the incline of the bridge, about 300 or 400 feet. The crash took place in the middle of the smoke, as nearly as I can tell."

Witness Dodrill, who was standing 50 feet south of the bridge and about 100 feet from the point where the truck fell, testified:

"I just heard the crash, and looked up at the bridge. I could see the street car approaching, but I could not see the auto coming. I think there was smoke and fog together. I heard the street car coming, but had no knowledge of the truck coming. I could not see it or hear it. The street car was lighted up. It had the lights on. The fog and smoke was denser to the west, over to where the street car was, than it was east of that point."

After witness Hoffman saw the truck enter the veil of smoke, no one saw the truck until the crash came. Several persons saw it pushed back, pause for a moment on the edge, and then fall off of the bridge. The witnesses standing below the bridge did not see the truck until after the contact. The truck, so far as the record discloses, was the only vehicle at the time on the bridge, besides the street car. No one testified as to the ringing of a bell on the car or the blowing of a horn on the truck, although the latter was equipped with "a good shrill horn, that was in good order."

The street car was moving not to exceed 15 miles an hour. Plaintiff in its petition charges negligence on the part of the defendants in numerous particulars, and among other allegations are: (1) That the street car was moving at an excessively high rate of speed, and at a speed greater than that permitted by the ordinance; (2) that the street car ran into this cloud of smoke without giving signals; (3) that the bridge was too narrow for the use of the wagons and the street car; (4) that the street car neglected to stop or slow down as the motorman saw, or could have seen, the danger to the truck; (5) that the truck was negligently shoved some distance after it had collided with the street car, and was finally...