Eaton v. Crips

Citation94 Iowa 176,62 N.W. 687
PartiesEATON v. CRIPS ET AL.
Decision Date04 April 1895
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from district court, Wapello county; W. D. Tisdale, Judge.

Action for damages for a personal injury. Trial to a jury. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.McElroy & Roberts and L. C. Hendershott, for appellants.

S. E. Adler, W. W. Cory, and C. C. Leech, for appellee.

KINNE, J.

1. On October 22, 1892, plaintiff, while attempting to cross the street at the corner of Main and Market streets, in the city of Ottumwa, for the purpose of taking passage upon a street car which had stopped in the center of Main street, was struck, knocked down, and seriously injured by a team driven by a servant of the defendants. The negligence charged against the defendants is in recklessly and carelessly driving the team and carriage against the plaintiff, and in driving at a rate of speed contrary to law and the ordinance of the city of Ottumwa, by reason of which she sustained the injury complained of. She also avers that she was in the exercise of due care. Defendants deny all of the allegations of the petition.

2. One of the main defenses relied upon is contributory negligence. It is said that although plaintiff testifies she looked in the direction from which the team and vehicle came which struck her, and that she listened for teams, and saw and heard none, her evidence cannot be true, and that the evidence shows that there was nothing to prevent her seeing the team in time to have avoided the accident had she looked and listened. In the consideration of this question, it is proper that we notice the special findings of the jury. They were, in substance, that plaintiff looked and listened for the approach of teams just before she passed over the street; that she could not by looking for approaching teams, just before she passed over the street, have seen defendants' team in time to have avoided the injury; that the injury was the result of the negligence of the driver of the team, defendants' servant; and that such negligence consisted in fast and careless driving. If these findings were warranted by the evidence, it is clear that plaintiff was not negligent. We think the jury were warranted in finding as they did. We cannot undertake to set forth all the facts which lead us to this conclusion. It is not strange that plaintiff did not see the team and vehicle which struck her. There were many people in the street. She was 63 years old, and somewhat feeble, and her eyesight was defective. People were getting off of the car, and a band was playing near by, which would have a tendency to prevent her hearing the approach of the team. As the vehicle approached plaintiff, the speed of the team was increased. The driver was in a hurry to make a train. When she was struck, she was within a step of the car. Her vision was, to a certain extent, cut off by the passing of people between her and the team. These and other facts show that there is nothing inconsistent in plaintiff's claim that she looked and listened for approaching teams, and saw and heard none. The verdict and special findings are fully sustained by the evidence.

3. Error is assigned on the refusal of the court to give the third, fifth, sixth, seventh, and eighth instructions asked by the defendants. These instructions are lengthy, and we cannot set them out in this opinion In so far as they were proper, they were covered by those given by the court. Some of them seem to be framed upon the theory that the negligence of the driver of the team and vehicle is to a certain extent to be determined by the distance he had to go, and the urgent necessity he was under to drive fast. Such is not the law. It does not matter what impelled the defendants' servant to drive at a reckless speed. His duty to his employers must be discharged with due regard to the public, to persons rightfully upon the street; and there could be no urgent necessity on his part which would justify him in such careless and reckless driving as to endanger the persons or lives of those who are properly and lawfully upon the street, and who themselves are in the exercise of due care.

It is said the court erred in giving the eleventh instruction, in that it submitted to the jury the question as to whether there was anything that prevented plaintiff from seeing the approaching team or from hearing it. It is insisted that the evidence shows there was nothing to obstruct plaintiff's view of the approaching team. There was evidence that there were many people upon the street, and evidence tending to show that they were between plaintiff and the team, at least a part of the time. The evidence justified the giving of the instruction.

4. Error is assigned in the admission of an ordinance of the city of Ottumwa regulating the speed of vehicles upon the...

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3 cases
  • Eaton v. Crips
    • United States
    • United States State Supreme Court of Iowa
    • April 4, 1895
  • Burt v. Staffeld
    • United States
    • Supreme Court of Michigan
    • September 27, 1899
    ......The same degree of care is not required of a person about to cross a street as is required of a person about to cross a railroad. Eaton v. Crips (Iowa) 62 N. W. 687. And it is generally held that the mere failure of a pedestrian to look and listen for teams as he is passing over a ......
  • Burt v. Staffeld
    • United States
    • Supreme Court of Michigan
    • September 27, 1899
    ......The same degree of care is not required of. a person about to cross a street as is required of a person. about to cross a railroad. Eaton v. Crips (Iowa) 62. N.W. 687. And it is generally held that the mere failure of a. pedestrian to look and listen for teams as he is passing over. ......

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