Elliott v. Des Moines Ry. Co.

• Decision Date: 16 February 1937
• Docket Number: 43613.
• Citation: 271 N.W. 506,223 Iowa 46
• Parties: ELLIOTT v. DES MOINES RY. CO.
• Court: Iowa Supreme Court

271 N.W. 506

223 Iowa 46

ELLIOTT v. DES MOINES RY. CO.

No. 43613.

Supreme Court of Iowa.

February 16, 1937

Appeal from District Court, Polk County; Loy Ladd, Judge.

An action for damages on account of the death of plaintiff's decedent resulting from a collision between a street car of the defendant and an automobile driven by the decedent. There was a trial to a jury resulting in a verdict for the plaintiff in the sum of $6,300, upon which judgment was entered. Motions for a directed verdict and for a new trial were overruled by the court, and defendant appeals. The facts are stated in the opinion.

Reversed.

Corwin R. Bennett and J. W. Albert, both of Des Moines, for appellant.

McMartin, Herrick & Langdon, of Des Moines, for appellee.

ANDERSON, Justice.

This action was commenced and prosecuted by Esther Elliott as administratrix of the estate of Ebert Z. Bell, who met his death as the result of a collision between a Chevrolet automobile driven by him and a street car owned and operated by the defendant, Des Moines Railway Company. The accident in question occurred about 7:40 p. m. on March 3, 1935, at the intersection of Euclid avenue and Cornell street in the city of Des Moines. Euclid avenue runs east and west in the north part of the city, is paved with brick, and United States highway No. 6 is routed over this avenue. Cornell street is 31 feet wide and is paved, runs north and south, and intersects Euclid avenue at the place of the accident involved in this case. The defendant company maintains a single track on Euclid avenue which runs east to the intersection of Cornell street where it turns north. The collision in question occurred between an eastbound street car turning north at this intersection and the automobile driven by the decedent traveling west. The street car track is in the center of Cornell street and a little to the north of the center on Euclid avenue. To a person traveling west on Euclid avenue an eastbound street car is first observable 300 feet west of the intersection in question, and the driver of such automobile can see the street car track turning to the north on Cornell street at least a third of a block east of the intersection. This is plainly shown by the photographs introduced in the record by both plaintiff and defendant. The physical situation as we have described it at the place of the accident has existed for several years. The decedent had lived in that part of the city for at least one year and a half preceding the accident and he had traveled over this intersection in both directions many times. On the evening of the accident the lights inside the street car as well as the headlight were burning as was also the headlights on the decedent's automobile. The appellant claims that the street car rails at the point of the accident were damp and slippery, while witnesses for the appellee testifies that they were dry. There is also a controversy as to the visibility at the time of the accident. However, we do not think that either of these controversies are material to a determination of the questions involved. Some 200 feet east of Cornell street and on the north side of Euclid avenue there was a " Slow" sign and there was also a sign in the vicinity showing " Street Car Crossing." There was no obstruction between the decedent's automobile and the street car that could have obscured the view of either the decedent or the motorman. The decedent's automobile was traveling on the north side of Euclid avenue in westerly direction approaching the street car, and, as the street car moved into the intersection, decedent's car was about 200 feet east of the intersection. The motorman momentarily looked to the north to observe whether there was any traffic on that street, and almost instantly as he turned his head again toward the east he discovered the decedent's car 20 feet east of the street car and proceeding directly toward him. The street car was then between one-quarter and one-half of the way around the curve. The motorman testified that he rang the foot bell twice as he was approaching the intersection but that he did not have time to again ring it after he saw the decedent's automobile 20 feet away from him. There was some testimony from a witness traveling 50 feet behind the street car in an automobile that the bell was not sounded as the street car approached the intersection but this is immaterial, as we have held that, where a person has knowledge of the pressence or approach of a train or other vehicle, negligence to give a signal or sound a warning cannot be predicated on a failure so to do. Engle v Nelson, 220 Iowa, 771, 263 N.W. 505; Ryan v. Trenkle, 203 Iowa, 443, 212 N.W. 888, 890; Sandell v. Des Moines City Railway Company, 184 Iowa, 525, 168 N.W. 226, 229.

There was also a controversy in the testimony as to the speed at which the street car was being operated as it approached the intersection in question, but there is no contention that the street car was operated at an excessive rate of speed and it is not sought to predicate negligence thereon. One of the appellee's witnesses testified that the street car was traveling about 25 miles an hour but slackened its speed as it started around the turn. Appellee's witnesses also testified that at that time they heard the sound of the brakes on the street car and that the street car slowed down abruptly when it was about one-quarter of the way around the curve. These witnesses also testified that their estimate of the speed of the automobile at the time of the collision was about 15 miles per hour. The motorman testified that the speed of the car immediately before the collision was about 7 or 8 miles an hour, and the testimony of the appellee shows that the street car moved forward about half its length after the collision occurred. The decedent was thrown out of the automobile by the collision and received injuries from which he died. The motorman testified that as soon as he saw the decedent's automobile 20 feet from the street car he cut off the power and applied the emergency brake, and it appears that the application of this brake opens the sand outlet and causes sand to be distributed on or near the rails. He also testified that he did all in his power and everything that was possible to stop the...