Hoffman v. Cedar Rapids & M. C. Ry. Co.

• Decision Date: 13 December 1912
• Court: Iowa Supreme Court
• Parties: HOFFMAN v. CEDAR RAPIDS & M. C. RY. CO.

157 Iowa 655

139 N.W. 165

HOFFMAN

v.CEDAR RAPIDS & M. C. RY. CO.

Supreme Court of Iowa.

Dec. 13, 1912.

Appeal from District Court, Linn County; F. O. Ellison, Judge.

Action to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of defendant. There was a verdict for the defendant, and from the judgment on such verdict the plaintiff appeals. Affirmed.

Deemer and Weaver, JJ., dissenting in part.

Rickel & Dennis, of Cedar Rapids, for appellant.

William G. Clark and W. E. Steele, both of Cedar Rapids, for appellee.

McCLAIN, C. J.

The defendant maintains and operates in Cedar Rapids an electrical street car line, and on First avenue, running east and west, it has a double track; the trolley wires being supported by iron posts set in a row about 150 feet apart between the two tracks. On July 19, 1908, as one of the cars of defendant coming from the east on the north line of track along said avenue approached the west side of First Street West, H. A. Sturdevant, plaintiff's intestate, coming from the south along the west side of First Street West, attempted, while the car was still in rapid motion, to enter it by the front vestibule door on the south or left-hand side of the car, the door at that time being open, and after he had mounted the step, but before he had entered the vestibule, he was carried by the motion of the car against an iron trolley post situated a few feet west of the sidewalk and received injuries from which he died. The negligence of the defendant alleged in plaintiff's amended and substituted petition was that it carelessly and negligently constructed its track so near the line of trolley poles as to render the act of getting on and off its cars at the place where Sturdevant received his injuries hazardous and dangerous; that it negligently operated the car in question with the front vestibule door open and without barricade on the south or left-hand side next to the line of trolley poles so as to invite entrance on that side, and with the knowledge of a usage and custom of passengers to board its cars on the side nearest the line of poles; that the motorman in charge of the car carelessly and negligently failed to have his car under proper control while crossing said First street, and carelessly and negligently failed to keep a proper lookout for passengers and persons about to board his said car, and carelessly and negligently failed to discover decedent when he was about to board said car, and negligently failed to stop the car after said motorman should have discovered decedent in his dangerous and perilous position while attempting to enter the car on that side; and that the motorman ran the car across said First street at a dangerous, reckless, and illegal rate of speed, in direct violation of defendant's rules and regulations. The defendant denied all allegations of negligence.

We have not attempted to state in further detail the plaintiff's allegations of negligence, for the reason that no complaint is made of the failure of the court in its statement to the jury of the issues to present to the jury all the issues raised by the pleadings.

1. Certain rulings of the court in the admission or rejection of evidence are complained of, and these may first be briefly noticed.

[1] A witness for the plaintiff, a boy of 12 years of age, having testified that, when he last saw decedent, the latter was standing east of the trolley pole where he was struck, and about 23 or 24 feet from it, was asked by counsel for plaintiff how he arrived at his conclusion about the distance to which he referred, and who was with him. To this question it was objected that it was in effect a cross-examination by the plaintiff of his own witness, and the objection was sustained. The court has, of course, a reasonable discretion in determining the character of questions which may be asked of a witness.

[2] But however that discretion may have been exercised in the present instance, whether reasonably or not, is immaterial, for on subsequent examination by defendant's counsel it appeared that the witness had gone to the place on the preceding day with counsel for plaintiff, and had seen the measurements of the distance to which he referred actually made. No possible prejudice could have resulted from the ruling complained of.

[3] A witness for the defendant, being called as an expert to testify as to the distance within which a car could be stopped, and having stated on cross-examination that he never saw any test made as to the distance within which a car could be stopped under certain conditions when going two or three miles an hour, and could not say how far such car would go before the wheels commenced to turn the other way on applying the reverse, was asked to state within what distance a car going two miles an hour could be stopped with the use of the brakes. An objection to this question as being incompetent, irrelevant, and immaterial and not proper cross-examination was sustained. We have read the record of the testimony of this witness, and are fully satisfied that the ruling of the court was within the scope of the exercise of its reasonable discretion. It does not appear what bearing an answer to this question would have had on the issues presented to the jury, or that such answer as the witness might have given would have tended in any way to modify the testimony he had already given with reference to the subject-matter under investigation. He had not testified on direct examination as to the distance within which a car operating at the speed of two or three miles an hour could be stopped.

[4] If it was important for the plaintiff to have the opinion of the witness as to the distance within which a car going at that rate of speed could be stopped, we think the subject was one for direct testimony on his behalf. If the purpose was to test the credibility of the expert witness, then an answer to the question would have been of no value, for there was no evidence in the case with which the answer of the defendant could be compared in making such test. The subject of the latitude of cross-examination even of expert witnesses is largely within the court's discretion, although it is no doubt true that considerable latitude in this respect is properly permitted. Other objections to the ruling of the court relating to the cross-examination of this witness were so manifestly within the scope of its reasonable discretion that a discussion of them would be superfluous.

[5] 2. The court in its instructions treated the amended and substituted petition as the petition in the case, stating to the jury the issues of fact presented by defendant's answer thereto. There was no error, therefore, in referring later in the instructions to the allegations of the petition; for the jurors, having no knowledge of any petition save that designated by the court as the petition, to wit, the amended and substituted petition, could not have understood that the court was directing their attention to the first petition in the case, which had been superseded and which had not been referred to in the trial of the case.

[6] 3. After stating the issues in two instructions which are not presented in the record save by a general statement of their subject-matter, the court gave an instruction withdrawing from the jury any claim that the defendant was operating the car on which the accident occurred at an “illegal rate of speed” at the time in question, and this is complained of on the theory that the jurors might have been misled into supposing that all questions as to negligence in the speed at which the car was being operated were withdrawn. Plainly the instruction could not have any such effect. The allegations of negligence in the petition which the court must have properly referred to in its instruction stating the issues related to a dangerous and reckless, as well as an illegal, rate of speed, and the sole effect of the instruction withdrawing an issue as to an illegal rate of speed was to leave it for the jury to say whether under the evidence the rate of speed was dangerous and reckless. It is not contended that there was any error in withdrawing the issue as to an illegal rate of speed per se, and as we understand the record there was no evidence that the car was being operated at a rate of speed prohibited by statute or ordinance at the point where the accident occurred. It is clear, therefore, that the jury could not have been led by the instruction given to assume that no question remained for their consideration as to a dangerous and reckless rate of speed.

[7] 4. An instruction was asked as to the doctrine of the last fair chance. That subject was covered at length, however, in instructions given by the court which are criticised only in that they referred to the failure of the motorman, after knowledge of the peril of the deceased, to stop the car so as to avoid the injury to him; whereas, the instructions asked related to the failure of the motorman under such circumstances to stop or “slow down” the car so as to have avoided the accident. We think the criticism of the court's instructions in this respect is hypercritical. The duty of the motorman assumed in the instruction asked and specifically stated in the instructions given was to use reasonable care to avoid injury to decedent after his peril was apparent, or should have been apparent under the circumstances, to the motorman. If he employed every reasonable means available to him to stop the car, he necessarily would have used every available means for reducing the speed, and, if a mere reduction of speed without a complete stopping of the car would have avoided the injury to decedent, then, under the court's instructions, the negligence of the motorman would have been sufficiently made out. Clearly there was no error in failing to specifically refer to the duty of the motorman to “slow down” the speed...