Dunham v. Des Moines Ry. Co.

• Decision Date: 11 January 1949
• Docket Number: 47304.
• Citation: 35 N.W.2d 578,240 Iowa 421
• Parties: DUNHAM v. DES MOINES RY. CO.
• Court: Iowa Supreme Court

35 N.W.2d 578

240 Iowa 421

DUNHAM v. DES MOINES RY. CO.

No. 47304.

Supreme Court of Iowa

January 11, 1949

Rehearing Denied March 11, 1949. [Copyrighted Material Omitted]

Corwin R. Bennett and Dale S. Missildine, both of Des Moines, for defendant-appellant.

Paul W. Steward and A. B. Crouch, both of Des Moines, for plaintiff-appellee.

HAYS Justice.

In an action for damages on account of the death of plaintiff's decedent, due to a collision between defendant's street car and a semi-trailer outfit driven by decedent, there was a verdict for $20,000. There was a motion for a new trial and for judgment notwithstanding the verdict. The latter motion was overruled. In ruling on the motion for a new trial, the trial court ruled that if the plaintiff filed a remittitur of all in excess of $15,000, within fifteen days, the motion would be overruled; otherwise sustained. No remittitur was filed and a new trial was granted. Both plaintiff and defendant have appealed. Defendant will be referred to as appellant.

The motion for a new trial being sustained, appellant's appeal must be from the overruling of the motion for judgment notwithstanding the verdict. The basis for this motion is that the appellant's motion for a directed verdict should have been sustained. This means that on this appeal, by appellant, the evidence must be viewed in the light most favorable to appellee. Lathrop v. Knight, 230 Iowa 272, 297 N.W. 291; Tuthill v. Alden, Iowa, 30 N.W.2d 726.

While appellant submits fifteen alleged errors, as a basis for a reversal, they may be classified as (1) contributory negligence of appellee's decedent; (2) no negligence on part of appellant; (3) not the proximate cause, assuming negligence and; (4) erroneous reception of evidence.

Briefly, the facts as disclosed by the record are: Decedent was employed by the Rock Island Motor Transit Co. as a truck driver and was engaged in hauling between Des Moines and Chicago. Appellant operates the street car system in the City of Des Moines and immediate vicinity. One branch, the Douglas Avenue-Avondale Line, serves not only the City of Des Moines, but also Avondale, an incorporated town just beyond the Des Moines City Limits. Hubbell Boulevard, a paved street through Des Moines, is classified as an arterial highway and, in part at least, carries U. S. Highway No. 6. At approximately East 33rd Street, if it had been extended to Hubbell Boulevard, the tracks of the Douglas Avenue-Avondale Line cross the Boulevard. The approach to the Boulevard is on appellant's private right of way. At this point, the Boulevard runs East and West; the car tracks North and South.

To the East of the tracks about 78 feet is a bridge where the Boulevard crosses Four Mile Creek. The bridge is 122 feet long. To the North of the Boulevard about 40 feet, and to the West of the tracks, is a small station or shelterhouse for appellant's patrons. There is no stop sign or marked stop line where the tracks intersect the Boulevard. At various streets intersecting the Boulevard in this vicinity, stop signs have been erected.

On the morning of October 1, 1947, at about 6:30 A.M., decedent driving a semitrailer outfit, was approaching the crossing in question from the East. The pavement was wet and there was a slight drizzle. At the same time, appellant's car was approaching the intersection from the North. Decedent was alone in the truck. There were several passengers in appellant's car, and, at the time of the collision, two men, in a Ford Car, were approaching the intersection from the West. When appellant's car was half way across the Boulevard, the semi-trailer hit the rear end thereof resulting in the death of decedent.

The testimony concerning the accident is rather vague and is somewhat in dispute. Harold McVay, driver of the Ford Car, stated that he saw the street car coming from the North and the truck from the East. The truck, at this time, was practically on the bridge. That the street car slowed almost to a stop and then proceeded across the Boulevard. At the time the street car slowed down, the truck was on the bridge. When the car was about half way across the pavement, the truck jackknifed and hit the car. Willard Mohr, riding in the McVay Car, states that he saw the street car approach the shelterhouse, slow down as though to stop and then pick up speed and proceed across the highway. The truck was at the East edge of the bridge when the street car slowed down at the shelterhouse.

Hershel Kile, a passenger on the car, saw the lights of the truck at the time the car stopped momentarily before crossing the highway. He did not observe it afterwards. Two other passengers state that the car came to a momentary stop at or near the shelterhouse. They did not see the truck.

C. E. Lewis, appellant's motorman, stated that as he approached the Boulevard from the North, he observed the lights of the truck coming from the East, at which time he started to slow down for the crossing. That as he came within 8 feet of the highway, he came to a complete stop and then proceeded across the same. At this time, the truck was about 50 feet East of the bridge. He made no further observations of the truck and was about half way across the highway when the truck struck the rear end of his car. The above is, in substance, the record in the case.

Appellant contends that under this record, appellee's decedent was guilty of contributory negligence as a matter of law. It is appellee's theory that decedent had the right of way, it being an arterial highway; that appellant's stopping was an invitation to decedent to proceed, and that she is entitled to the benefit of the no-eyewitness rule on this question. The trial court held that decedent did not have the right of way, as a matter of law, as the appellant was under no statutory duty to stop before crossing the highway. This ruling is based upon the provisions of Section 321.345, Code of 1946. While this may appear to be contrary to our holding in Davis v. Hoskinson, 228 Iowa 193, 290 N.W. 497, we believe the cases may be distinguished and furthermore, Section 321.345 was not considered therein. The trial court was correct in its holding.

Appellant also contends that it was decedent's duty to yield the right of way. This claim is on the theory that the car was in fact an inter-urban rather than a street car, and entitled to the benefits of the rule announced in Hawkins v. Interurban Railway Co., 184 Iowa 232, 168 N.W. 234; Baker v. Des Moines City Railway Co., 199 Iowa 1256, 202 N.W. 762, and other cited cases. However it is clear, under this record, that appellant's car must be classified as a street car. Wright v. Des Moines Railway Co., 231 Iowa 410, 1 N.W.2d 259; Section 321.1(30), Code of 1946. While in the cases cited by appellant, there are statements which would appear to apply the same rule to street cars as is applicable to railroads, they do not determine the question. In Adams v. Union Electric Co., 138 Iowa 487, 489, 116 N.W. 332, it is said: '* * * Upon observing a car in the distance the driver of a vehicle can neither recklessly drive upon the crossing in a race with the car, nor is he arbitrarily required to stop his vehicle and wait for its passage. * * * All exacted is that reasonable prudence with reference to their operation be exercised by them to avoid injury, and when in so doing it can be said that they reasonably believe a crossing can be made in safety they may go over without laying themselves open to the charge of negligence.' See also, Flannery v. Interurban Railway Co., 171 Iowa 238, 153 N.W. 1027; Joyner v. Interurban Railway Co., 172 Iowa 727, 154 N.W. 936; Guy v. Des Moines City Railway Co., 191 Iowa 302, 180 N.W. 294. That this is in accord with the weight of authority see 5 Am.Jur. Automobiles, Section 311; Annotation 28, A.L.R. 217; Bradley v. Minneapolis Street Ry. Co., 161 Minn. 322, 201 N.W. 606, 46 A.L.R. 1000. The trial court refused to instruct on appellant's theory of 'priority of right of way' but submitted the question of 'reasonable care under the circumstances', and in this we find no error.

Appellee contends that under the no-eyewitness rule announced in Hayes v. Stunkard, 233 Iowa 582, 10 N.W.2d 19, the question of contributory negligence was for the jury. The court did not instruct upon this issue, although such may have been proper under the facts herein. However, there was ample evidence to raise a jury question as to contributory negligence and appellant's motion, on this question was properly overruled.

II. Appellant's second assignment of error is that the record fails to show negligence in any of the respects charged in appellee's petition.

Appellee charged, and the court submitted to the jury, the question of 'proper lookout' upon the part of the motorman. He testified that he saw the truck approaching as he slowed down but did not observe it thereafter. Under the pronouncement in Pazen v. Des Moines Transportation Co., 223 Iowa 23, 272 N.W. 126, this specification of negligence was properly submitted.

The trial court also submitted to the jury the question of whether or not, under the exercise of due care, the street car should have stopped before proceeding across the highway. While the record would appear to establish the fact that the street car did stop, there is some dispute upon this question. It is not claimed by any one that even assuming that the street car did stop, the stop was more than a momentary one, as all parties concede that the street car immediately picked up speed and crossed the highway. The 'stop' contemplated in both the specification of negligence and in the instruction would not be met by a momentary stop, if under the circumstances in order to avoid a collision, a stop was...