Fisher v. Cedar Rapids & Marion City Railway Co.
| Citation | 157 N.W. 860,177 Iowa 406 |
| Decision Date | 10 May 1916 |
| Docket Number | 30527 |
| Parties | J. C. FISHER, Appellee, v. CEDAR RAPIDS & MARION CITY RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED THURSDAY, SEPTEMBER 21, 1916.
Appeal from Linn District Court.--W. N. TREICHLER, Judge.
ACTION for personal injuries. Verdict and judgment for the plaintiff in the court below. Defendant appeals.-- Affirmed.
Affirmed.
Barnes Chamberlain & Randall, for appellant.
Gorden & Osmundson and B. L. Wick, for appellee.
This action is brought to recover damages resulting from a collision between one of defendant's street cars and a wagon in which plaintiff was riding. Plaintiff claims that he was thrown from the wagon by the impact of the car and sustained painful injuries. He also asks to recover the value of a horse killed in the accident.
The accident out of which this suit arises occurred on Beaver Avenue in the city of Cedar Rapids, 30 or 40 feet west of the intersection of Twenty-second Street with Beaver Avenue. Beaver Avenue runs east and west. Defendant's railway track extends along the center of the street east and west, crossing Twenty-second and Twenty-third Streets. Twenty-second and Twenty-third Streets run north and south, and intersect Beaver Avenue. The northern terminus of these streets is at Beaver Avenue. Beaver Avenue, west from Twenty-second Street, is paved, and so paved that it can easily be crossed at the intersection of Twenty-second Street. Beaver Avenue is not paved east of Twenty-second Street. All the travel on Beaver Avenue east of Twenty-second Street is on the south side of the avenue, south of defendant's track. At Twenty-third Street, there is no provision made for crossing the track from the south.
On the 22d day of December, 1913, at about 5:30 in the evening, the plaintiff came from the south on Twenty-third Street to Beaver Avenue, turned then onto Beaver Avenue, and proceeded westward along the south side of Beaver Avenue over this dirt road, until he reached Twenty-second Street. There he entered upon the pavement. Instead, however, of turning directly across the street, as he might have done on Twenty-second Street, to the north side of the street, and proceeding then westwardly along the north side of Beaver Avenue, he traveled diagonally some 30 or 40 feet on the south side of the paved portion of Beaver Avenue, and then attempted to cross the railway track at a point variously estimated at from 30 to 50 feet west of the west side of Twenty-second Street, and was there run down and injured, and his horse killed. The car that struck him was also proceeding toward the west.
He brings this action to recover damages, and alleges that the damages sustained by him were due to the negligence of the defendant, and the negligence which he charges caused the injury is: First, that the defendant ran and was running its car, at the time of the collision, at a high and dangerous rate of speed, without due regard to the safety of the public using the avenue. Second, that it failed to give any warning of the approach of the car by gong or bell, either as it approached Twenty-second Street, over which it had to pass in reaching the point of collision, or before reaching the point of collision. Third, that the defendant's motorman discovered plaintiff, or, in the exercise of ordinary care, should have discovered plaintiff's peril, in time to have avoided the injury, but failed to exercise such care.
The answer of the defendant was: First, a general denial; second, that the plaintiff was guilty of negligence directly contributing to the injury, in that he was, at the time, engaged in crossing the track in a manner and at a place prohibited by the ordinances of the city.
The cause was submitted to the jury on the first two grounds of negligence alleged. The doctrine of last clear chance was not submitted. The jury returned a verdict for the plaintiff, and, judgment being entered thereon, defendant appeals.
The defendant presents four grounds for reversal: First, in overruling defendant's motion for a directed verdict; second, in refusing to submit to the jury instructions asked by the defendant; third, in the giving of instructions to the jury on its own motion; fourth, in overruling defendant's motion for a new trial. We take up these errors in the order of assignment.
The motion for a directed verdict was predicated mainly on the proposition that the plaintiff was guilty of contributory negligence, in that he was, at the time, in the act of violating an ordinance of the city, both in what he did and in the manner of its doing, and that this contributed to the injury of which he complains, and this, therefore, precludes any right of recovery as against the defendant. The sixth ground of the motion for a directed verdict seems to be broader than the mere allegation of contributory negligence, and may have been intended to cover the whole case; but the argument presented in support of this claim narrows this assignment to the one question. This we conceive to be the main ground of defendant's complaint under this assignment.
The general rule contended for by the defendant in support of this assignment of error will not be questioned. It has been too frequently held by this court that a violation of a statute or a municipal ordinance is per se negligence, and that, if injury results to one while engaged in the prohibited act, and the doing of the prohibited act contributes to the injury, no recovery can be had. See Herries v. City of Waterloo, 114 Iowa 374, 86 N.W. 306, and authorities cited; Healy v. Johnson, 127 Iowa 221, 103 N.W. 92.
The question then is: Was the plaintiff, at the time of the collision, or immediately preceding the collision, in the act of violating an ordinance of the city of Cedar Rapids?
The record discloses what plaintiff was doing, as follows: He came down Twenty-third Street from the south. When he reached Beaver Avenue, he turned to the left, and proceeded along the south side of Beaver Avenue to Twenty-second Street. It is not seriously contended that he did not have a right to travel on the south side of Beaver Avenue as far, at least, as Twenty-second Street. The record discloses that all the travel was on the south side; that, approaching Beaver Avenue from the south on Twenty-third Street, there was no provision made for crossing defendant's railway track; and it is apparent that all persons approaching Beaver Avenue from the south on Twenty-third Street did proceed westwardly on the south side of defendant's tracks as far as Twenty-second Street. When he reached Twenty-second Street, he proceeded diagonally across the street to the point of collision. (We herewith submit a sketch showing approximately the point of collision and the streets in question.)
[SEE SKETCH IN ORIGINAL]
He did not turn and cross at the intersection of Twenty-second Street and Beaver Avenue when he reached the pavement. This is what the defendant says constituted a violation of the ordinance precluding recovery, under the rule hereinbefore stated.
The sections of the ordinance relied on, so far as related to the matter here in controversy, are as follows:
There is nothing in this ordinance, nor is there anything in the general law, which requires a person to cross a public street at an intersection, or at any particular point in the street. Therefore, the fact that the plaintiff did not, on reaching Twenty-second Street from the east, proceed to cross Beaver Avenue at the intersection, does not, in and of itself, involve an act of negligence. It is not negligence per se for a person to attempt to cross a street at any convenient point. See Watson v. Boone Electric Company, 163 Iowa 316, 144 N.W. 350. In this case, the plaintiff was struck by a car operated by an electric railway company and injured. Just prior to the collision, he was driving westward along the north side of the track. At a point somewhere from 25 to 50 feet east of the intersection, he turned to the left, to the south side of the street. He had nearly cleared the track when he was struck. It was the contention of the defendant that the plaintiff was guilty of contributory negligence. This court said:
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Fisher v. Cedar Rapids & M. C. Ry. Co.
... ... Gorden & Osmundson, of Forest City, and B. L. Wick, of Cedar Rapids, for appellee. GAYNOR, J. This action is brought to recover ... Beaver avenue runs east and west. Defendant's railway track extends along the center of the street east and west, crossing Twenty-Second and Twenty-Third ... ...