Dow v. Des Moines City Ry. Co.

• Decision Date: 16 June 1910
• Citation: 148 Iowa 429,126 N.W. 918
• Parties: DOW v. DES MOINES CITY RY. CO.
• Court: Iowa Supreme Court

148 Iowa 429

126 N.W. 918

DOW

v.DES MOINES CITY RY. CO.

Supreme Court of Iowa.

June 16, 1910.

Appeal from District Court, Polk County; James A. Howe, Judge.

Action at law to recover damages for injuries received by plaintiff due to being struck by a car upon defendant's line of road. Defendant denied any negligence on its part and pleaded that plaintiff was guilty of contributory negligence. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Affirmed.Guernsey, Parker & Miller, for appellant.

W. C. Strock and Thomas A. Cheshire, for appellee.

DEEMER, C. J.

Defendant is a corporation operating a street railway system in the city of Des Moines. Its Ingersoll Avenue Line running east and west through a residential district is double tracked; west-bound cars taking the north, and east-bound the south, tracks. These tracks are standard gauge, to wit, 4 feet 8 1/2 inches, and the distance between the two tracks is five feet six inches. The cars which ran over these lines were from 8 feet to 8 feet and 2 inches in width. All the cars on defendant's line carried United States mail boxes, and the public was invited to stop them at street crossings for the purpose of depositing mail in these boxes. Defendant's Ingersoll Avenue Line crosses streets running north and south and numbered from Seventeenth to Thirty-Ninth inclusive. At the intersection of Twenty-Ninth and Ingersoll avenue, there was at the time of the accident in question a small frame structure at the southwest corner of the street intersection used by persons contemplating passage upon defendant's cars as a waiting station. From Thirty-Fourth street east to Twenty-Eighth there is a downgrade varying from 1 1/3 to 4 1/9 per cent. Nine hundred and seventy feet and a fraction west of the west side of Twenty-Ninth street at its intersection with Ingersoll avenue is the beginning of a curve in defendant's line of road. This is a 3 per cent. curve. The grade of the tracks from the east end of this curve to Thirtieth street is 4 1/9 per cent., from Thirtieth street to Twenty-Ninth it is 1 75/100 per cent., and from Twenty-Ninth to Twenty-Eighth 2 9/10 per cent. The grade of the curve is 3 2/3 per cent. This curve, as we have said, begins 970 feet west of Twenty-Ninth street and 216 feet west of Thirtieth street. From any point north of the waiting room and south of the north track on Twenty-Ninth street there is a plain view of cars approaching from the west of from 100 to 105 rods. There were many houses on both the north and south sides of Ingersoll avenue; but these did not obstruct a view of cars approaching from the west for the distance indicated.

At the time of the accident plaintiff, who is a married woman, was living two blocks south of Ingersoll avenue and one block east of Twenty-Ninth street. She left her home at 4:30 or 4:45 p. m. February 24, 1908, to post a letter on one of defendant's cars, and went to the intersection of Twenty-Ninth street with Ingersoll avenue. A drizzling rain was falling, and she carried an umbrella to shield herself therefrom. As she approached the avenue, she could see a car passing thereon for a block and one-half south of said avenue, and she saw no cars pass the crossing which she was approaching on the day in question. The schedule time for cars at that time was every seven or eight minutes. As we have said, the day was cloudy, and it was raining, and plaintiff went to a point north of the waiting station, where she had a clear view of defendant's track both east and west--westward for the distance already indicated. Here she stopped and looked westward for an approaching car, standing there for two or three minutes. Discovering no car approaching, she looked toward the east and discovered one approaching from that direction, which was then somewhere between Twenty-Eighth and Twenty-Ninth streets. She immediately crossed all the tracks and waited for the west-bound car to pass her and to stop, either to receive her letter, discharge passengers, or both. This west-bound car stopped on the west side of Twenty-Ninth street in such position that the door, which was in the center of the car, was on the west side of Twenty-Ninth street and just opposite the place where she was standing. As the mail box was on the rear of the car, plaintiff immediately proceeded to the east end of the car and there deposited her letter in the box. The west-bound car then started, and plaintiff, at the same time, proceeded in a southern or southwesterly direction to recross the tracks, when she was struck by an east-bound car and received the injuries of which she complains. There is testimony that this east-bound car was running at least 25 miles per hour, and also to the effect that it threw plaintiff something like 86 feet. She might have gone farther but for the fact that she was thrown against and struck a boy who was walking westward on Ingersoll avenue. This car also ran from 300 to 400 feet after it struck plaintiff before it could be stopped.

The negligence charged against the defendant is as follows: “(1) That the motorman on the east-bound car which struck the plaintiff was negligent in that he ran his car by the car, which had stopped to discharge passengers, at a rate of speed exceeding three miles per hour. (2) That the motorman on the east-bound car was negligent in that he ran his car down a descending grade without having such car under perfect control. (3) That the motorman on the east-bound car was further negligent because he failed to sound his gong for a distance of 50 feet west of the front end of the west-bound car, until he had passed the west-bound car. (4) That the motorman on the east-bound car was further negligent in that he passed the intersection of Twenty-Ninth street and Ingersoll avenue at a rate of speed prohibited by the ordinance of the city of Des Moines regulating the speed of his car and limiting its speed to 12 miles per hour. (5) The motorman on the east-bound car was negligent in that he failed to exercise ordinary care in running his car at a proper and lawful rate of speed at the time the plaintiff was struck and injured by said car.”

In her petition plaintiff also made the following, among other, allegations: “That on the day she was injured, and for a long time prior thereto, there was a general custom prevailing among motormen on the cars of the defendant railway company that, when a car on a parallel track passed another car which had stopped to discharge passengers at a street crossing, the passing car would slow down to a speed of not to exceed 3 miles an hour, and the motorman ring his gong from the time the moving car was within 50 feet of the front end of the standing car until he passed, and that the plaintiff knew of this custom. * * * That at the time plaintiff was injured, and for some years before, there was a general custom prevailing among the motormen of the defendant railway company that, when their cars were going down descending grades, the motorman would hold the car under perfect control at all times, which custom was known to the plaintiff. That at the time and for a long time prior to the date of the plaintiff's injury, there had prevailed among the motormen of the defendant railway company a general custom to sound their gongs before crossing intersecting streets, and cross-walks, and hold their cars under perfect control, which custom was known to the plaintiff. Plaintiff further states that at the time of her injury, and for a long time prior thereto, there had prevailed among the motormen of the defendant railway company a general custom to stand at their levers, attend strictly to their duties, and use the utmost care to prevent any kind of an accident to passengers getting off or on the cars of the defendant, or to persons crossing the streets or in any other way liable to be injured by the cars of the company, which custom was known to the plaintiff.”

Plaintiff introduced an ordinance of the city of Des Moines prohibiting the running of cars at the point in question at a greater speed than 12 miles per hour, and also produced testimony to prove the customs pleaded by her.

Under the facts disclosed, there can be little if any, doubt of defendant's negligence. Indeed, if there were nothing more in the case than excessive rate of speed, that would be enough, under the circumstances shown, to take the case to the jury on the question of defendant's negligence.

2. Reversal is sought on the ground of claimed errors of the trial court in the admission and rejection of testimony, and in the giving and the refusal to give certain instructions, and it is strenuously insisted that under the undisputed testimony plaintiff was guilty of contributory negligence as a matter of law and should not be allowed to recover for the consequences of the collision. We shall first take up the rulings on the admission and rejection of testimony. It is claimed that the court erred in permitting plaintiff's counsel to propound certain leading questions to his witnesses. A question somewhat leading in form was propounded by counsel to plaintiff herself which was objected to by defendant's counsel. Without ruling upon the objection, the trial court propounded this question to the witness, which was answered as shown: “By the Court: State the fact as to where you looked. (Defendant excepts.) A. I looked just as I crossedthe track.” There was no error here of which defendant may justly complain. The interrogatory propounded by the court was not objected to, and, had it been, the objection would have been without merit. Moreover, it is a rare case indeed which will be reversed because a leading question is propounded but not answered.

Although defendant was not charged with having a defective gong on its east-bound car, plaintiff was permitted to prove, over objections, that the gong upon this car was defective. We think this testimony was admissible as...