Clemens v. Chi., R. I. & P. Ry. Co.
| Decision Date | 13 December 1913 |
| Citation | 144 N.W. 354,163 Iowa 499 |
| Parties | CLEMENS v. CHICAGO, R. I. & P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Appanoose County; F. M. Hunter, Judge.
Action to recover damages for personal injury, alleged to have been caused by being struck by defendant's train while walking near its tracks. The court held that the evidence showed that the plaintiff was a trespasser at the time he was hurt, and the court submitted the case to the jury on the doctrine of last clear chance. After the jury had been out 50 hours, they were called in and instructed by the court and admonished to get together. After being out 20 hours longer, they returned a verdict for the plaintiff. Reversed.J. L. Parrish and Robt. J. Bannister, both of Des Moines, and Porter & Greenleaf, of Centerville, for appellant.
Wilson & Smith, of Centerville, for appellee.
This is an action to recover damages for a personal injury which plaintiff claims to have sustained by being struck by one of the defendant's trains while walking near its track. The cause was submitted to the jury on the theory of last clear chance. The court instructed the jury, in substance, that the plaintiff was a trespasser, and had no right to be at the place where he claims he was injured; that he was negligent; and that his negligence contributed to the injuries received; and that this fact denied him the right to recover, for the reason that the defendantdid not owe him any duty to either ring the bell, blow the whistle, or have the headlight burning as it approached the point where the plaintiff was, and owed him no duty to slow down the speed, and owed him no duty to discover his position sooner than it actually did discover him; and that its only duty was not to wantonly and willfully injure him, after discovering his peril; that the defendant's first duty to the plaintiff arose when it discovered him on or near the track and in a place of peril.
The court said to the jury, in substance, that when the defendant discovered the plaintiff in such close proximity to the track that he was liable to be struck by the engine, if he continued walking in such direction, the defendant had a right to presume, in the first place, that he would not so continue in such position, but would leave his place of peril on the approach of the train, but that when it became apparent to the company, through its employés in charge of the train, or by ordinary care it should have become apparent to them, that he did not know of the approach of the train, and that there was danger of striking him, it then became its duty, at once, to exercise ordinary care to avoid the accident, by stopping the train, if it could be stopped before the accident, or by giving the plaintiff such warning or signal of the approach of the train as the evidence shows was at their command, and that if they failed to use such ordinary care, and if the accident would not have occurred had they used such ordinary care, then your verdict should be for the plaintiff. But if they used such ordinary care, then, even though the accident was not avoided, your verdict should be for the defendant.
The instructions given to the jury, in substance, were that the plaintiff, at the time when and the place where he was injured, was a trespasser upon the property of the defendant, and that the defendant therefore owed him no duty to discover his presence on or near the tracks, owed him no duty to ring the bell or blow the whistle as a warning to him of the approaching train, and owed him no duty to lessen the speed at which the train was coming until it discovered plaintiff's position of peril; that the plaintiff was negligent in being at the point where he was struck; and that this negligence contributed to the injuries he received; and that he could not recover unless he showed, by a preponderance of the evidence, that, notwithstanding his negligence in being at the point and place where he was struck, the defendant discovered his position of peril for such a length of time before the injury that, by the exercise of ordinary care, it could have prevented the injury--that is, could have warned the plaintiff of the approaching train, so that he might escape from his peril, or could have stopped the train so as to avoid the collision.
[1][2] The doctrine of last clear chance is predicated on the idea (which is humane, and just in its proper application), that the fact that the plaintiff has negligently placed himself in the place of peril will not defeat recovery, if the defendant discovered his negligence, in so placing himself, for such a length of time before the injury that it could have avoided injuring him by exercising reasonable care. This doctrine presupposes that the plaintiff's negligence was not active, continuing, and concurring negligence, continuing up to the very time of the accident, and concurring therein, but was remote and antecedent. If the plaintiff's negligence is continued, with knowledge of the imminent danger, and so continued up to the time of the accident, if, during the time intervening between the defendant's discovery of his peril and the accident, the plaintiff knew of the approaching train, knew of his own peril, and could, by the exercise of reasonable care at all times, between the time he was discovered by the defendant and the accident, have removed himself from the place of peril, but negligently failed and neglected to do so, then the doctrine of last chance will not serve him in a suit to recover damages, even though he shows, by the evidence, that the defendant also could, by the exercise of reasonable care, have avoided the injury. The doctrine of last chance presupposes that the defendant has the last clear chance to avoid the injury, and is not to be applied in cases where the plaintiff, with knowledge of the approaching danger and its imminence, heedlessly, carelessly, and negligently continues in his position of peril, when he knows escape rests within easy reach of him by the exercise of ordinary care. Then it is that the negligence becomes concurrent, and neither can recover from the other.
[3] There is evidence in this case that the plaintiff knew of his position of peril, and that he was in fact in a position of peril; that he was informed of the approaching train; that an avenue of escape from the peril was open to him by simply stepping aside; and that he failed and neglected to avail himself of it. There was evidence that the train could be, and was, heard distinctly as it approached, for some time prior to the collision. There is no evidence that the plaintiff's hearing was defective, or that his attention was diverted, or that the conditions were such that he could not have heard the approaching train. If this evidence is true (and it was for the jury to say whether it was true or not), the plaintiff miscalculated his chances of being injured in walking where he did, when slight effort on his part would remove him entirely out of the zone of danger.
It will be borne in mind that the plaintiff was not upon the railway track, but walking near it; that there was nothing at any time to prevent him from removing himself outside the zone of possible danger. A railway track, though a signal of danger, and suggestiveof danger, from the use to which it is put, involves no danger in itself. The fact that one is a trespasser upon the track subjected him only to the dangers incident to moving trains. By going upon a track, where he has no right to be, he puts himself within the zone of the danger incident to the use of the tracks. The mere fact that he is a trespasser, the mere fact that he has voluntarily put himself within the zone of possible danger, does not defeat his right of recovery, if the company discovered him in his position for such length of time before the collision that it could, by the exercise of reasonable care, have avoided the collision and the injury. But this rule presupposes that the only negligence to be...
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State v. Davis
...and cause them to scrutinize the evidence more closely and re-examine the grounds of their opinion."); Clemens v. Chi., R.I. & P. Ry. , 163 Iowa 499, 144 N.W. 354, 357–58 (1913) (same). Closely related to this concern is an action by the district court that proactively identifies the number......
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State v. Peirce
...a shorter time before the additional instruction was given, and reached a verdict more slowly after the instruction was given, than in the Clemens case, where the instruction was disapproved, and in the present case. The argument in the Clemens case that, where the jury remains out long aft......
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State v. Campbell, 63050
...Utilities Co. v. Incorporated Telephone Co., 222 Iowa 1275, 1280-82, 271 N.W. 180, 183-84 (1937); Clemens v. Chicago, Rock Island & Pacific Railway, 163 Iowa 499, 509, 144 N.W. 354, 357 (1913). Despite this court's denunciations of Allen -type charges, reversal on grounds of its usage has b......
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State v. Peirce
...220, and Armstrong v. James, 155 Iowa, 562, 136 N. W. 686, in effect, approve it in its entirety. On the other hand, in Clemens v. Railway, 163 Iowa, 499, 144 N. W. 354, we reverse because of an instruction substantially like it, the dissent of Mr. Justice Weaver in the Armstrong Case, supr......