Doran v. Waterloo, C. F. & N. Ry. Co.
| Decision Date | 22 June 1915 |
| Docket Number | No. 29483.,29483. |
| Citation | 153 N.W. 225,170 Iowa 614 |
| Parties | DORAN v. WATERLOO, C. F. & N. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Bremer County; C. H. Kelley, Judge.
Action to recover damages for personal injury. Judgment for the plaintiff. Defendant appeals. Affirmed.
See, also, 147 N. W. 1100.
Ainsworth & Hughes, of West Union, and Wade, Dutcher & Davis, of Iowa City, for appellee.
At the time of the happening of the accident complained of defendant operated an electric railway in Waterloo, Iowa, and had two lines of electric interurban railways running out of Waterloo to Cedar Falls and Waverly, respectively. Broadway is a public street in the city of Waterloo, and runs east and west. About 300 feet east of Broadway the defendant maintained a car barn for the storage of its electric cars and also its interurban cars. There are four tracks leading from the street railway line on Broadway to this car barn. For convenience we will number them from the north 1, 2, 3, 4; the south track, No. 4, being the one on which it is claimed the accident occurred. This barn faces to the west, and there are sliding doors in the barn over each track large enough to permit a car to pass through and enter the barn. In the large door over track 4 there is cut a small door, in the north half of the large door. This is for the purpose of enabling people to pass in and out of the barn without opening these larger doors.
For about three years prior to the accident plaintiff had been in the employ of the defendant as car repairer. His usual work was at the shops, about three-quarters of a mile from this barn. He, however, during that time, had been frequently called to this barn to make repairs. About 9 o'clock on the 4th day of January, 1911, the plaintiff was requested by the defendant to come to this car barn and take charge of it, in place of the foreman. About 12:50 a. m. on the morning of January 5, 1911, the plaintiff was at his desk in this barn looking over the report of the motormen, and engaged in and about his duties, when he heard a car approach, and went to the small door over track 4 (this being the south track), and was about to open the door when a street car driven by defendant's motorman, Hartman, crashed into and through the door, pushing it in, and pinned plaintiff against another street car standing some 2 or 3 feet inside the door. The car that ran into the barn was a single-truck street car, under 32 feet in length, weighing about eight tons. It was equipped with the usual controllers for throwing off and on the electric current, and for reversing the car, and had a standard hand brake which operated upon four wheels, but the car did not have any sand equipment thereon, nor did it have an air brake. This car, operated by Hartman, was brought over these tracks from Broadway, for the purpose of housing it in this barn.
The evidence tends to show that after Hartman left the main line and entered upon these tracks leading to the barn, and after the conductor, Dougherty, threw the switch on the Broadway line, the car then proceeded to the next switch, passing over a track curving south and west, and there stopped while the conductor opened the switch. The next switch was open, and he went through that and stopped between the second and third switches. The conductor opened the third switch, and he went through upon the line of the fourth track. As they got near the barn the conductor got off and walked ahead to open the door, probably 8 or 10 feet ahead. The motorman attempted to stop the car, and found the wheels were slipping, and then attempted to stop it by reversing the power. The last switch is about 140 feet from the barn. When he got within 30 or 40 feet from the barn, he noticed that the wheels were sliding. He then threw off the brake and reversed the current. There is no evidence that the track was slippery at any other point that night, or that the motorman had any trouble with the car slipping on that evening prior to this time. It appears that this track, from Broadway to the barn, is a level track; that, after the car left the last switch on its way to the barn, it was running from 3 to 4 miles per hour. There is no controversy as to the fact that plaintiff was injured by being crushed between the car in question and the car inside the barn. There is no question in this case as to any contributory negligence on the part of the plaintiff. The charge of negligence made by plaintiff against the defendant,and as submitted to the jury, is substantially as follows: A failure to put sand upon the track when this car approached the barn at a point where the car was compelled to stop, and in failing to equip the car which caused the injury with a sand box or sand equipment so that sand could be put upon the track by the motorman, and in operating this car without sand or sand equipment upon a slippery track, at said place, and at too great a rate of speed, in view of the condition of the track and the lack of sand or sand equipment as aforesaid. There was a general denial of negligence on the part of the defendant. Upon the issues thus tendered the cause was tried to a jury, verdict rendered for the plaintiff, and judgment entered upon the verdict, and from this defendant appeals, assigning error on the part of the court.
In the consideration of this case we will not review the alleged errors in the order in which they are set out in defendant's brief. Defendant assigns 29 errors. The first 17 errors relate to the admission and rejection of testimony. The eighteenth error assigned relates to the action of the court in refusing to sustain defendant's motion for an instructed verdict. The balance of the errors relate to the action of the court in giving certain instructions on its own motion, and in refusing certain instructions asked by the defendant, together with the complaint that the verdict is grossly excessive, and is the result of passion and prejudice.
At the conclusion of all the evidence the defendant moved the court to direct the jury to return a verdict in favor of the defendant, on the ground that the evidence failed to show any actionable negligence on the part of the defendant, and that the evidence affirmatively showed that the defendant was not negligent in any of the matters charged against it by the plaintiff in his petition. The court having overruled this motion, and error being predicated upon the action of the court in so doing, we will consider this assignment of error first.
It appears that the street car was operated by one Hartman; that it was a single-truck car, less than 32 feet long, and weighing about eight tons; that the track from Broadway to the barn was practically level; that this night was cold; that there was no snow on the ground, but the air was hazy and frosty.
Hartman testified that he took charge of this car somewhere between 4 and 5 o'clock in the afternoon preceding the day of the accident, and had operated it continuously up to the time of the accident; that it was in good working order; that he did not discover that the rails were slippery at any time preceding the accident; that the car began to slide after he attempted to stop it at the barn; that that was the first time he noticed that the rails were slippery; that he observed nothing that called his attention to the fact that the rails were slippery until he discovered that the car was sliding towards the barn after he set the brakes; that after he discovered this he let the brakes off, reversed the power, but still the car slid into the barn; that he was about 20 feet from the barn when he reversed the power. He says he might have been a car's length; that he did not notice closely on that point. He says he slid a little before he reversed the power; that there were bright lights at the barn--a cluster at the corner. He saw the barn doors were closed when he turned off the main line, and as he approached the barn. After he turned off the main line he was running 3 or 4 miles an hour, but supposed he had perfect control of the car. He had one hand on the controller and one hand on the brakes. He says that after the conductor opened the third switch he went right up the line on track 4; that the conductor rode. As he got near the barn the conductor got off and walked ahead to open the switch, probably 8 or 10 feet ahead. At the time the conductor got off he was reversing the car. He attempted to stop it by reversing the power after discovering the wheels were sliding. He said the rails on a street railway track were likely to be slippery, if it was just commencing to rain, or if the frost was just going out or freezing out; that the slippery condition of the rails is produced by weather conditions. Some days, he says, they find slippery rails; other days not. When the weather conditions are right, they find it on part of the tracks. It depends upon the weather a good deal. Cannot tell whether you are going to find a slippery rail on a cold day. He says he does not know of anything further he could have done to stop the car that night. After he discovered the wheels were slipping he did everything he could; that, ordinarily, on a dry rail, by the application of a hand brake, you could stop a car in 6 or 8 feet, when running 3 or 4 miles an hour. There is not much difference in stopping on a dry rail or a sanded rail.
Robert Davidson, called for the plaintiff, testified:
Scott Lamb, called for the plaintiff, testified:
...
To continue reading
Request your trial