Hollgren v. Des Moines City Ry. Co.
| Decision Date | 10 March 1916 |
| Docket Number | No. 30675.,30675. |
| Parties | HOLLGREN v. DES MOINES CITY RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Lawrence De Graff, Judge.
Action at law for the recovery of damages on account of personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Parker, Parrish & Miller and A. G. Rippey, all of Des Moines, for appellant.
Stipp, Perry & Starzinger, of Des Moines, for appellee.
The defendant operates a street railway in Des Moines, and plaintiff is a resident of the same city. One of the railway tracks is laid along West Locust street and across West Fourth street. On the day in question plaintiff was riding in a top buggy driven by another woman, Miss Sandell. They drove east on the south side of the track from Fifth street toward Fourth street, intending to there cross the track and proceed to the north on Fourth. As they approached Fourth street one of the defendant's cars came on moving in the same direction, but a little in the rear of the buggy and stopped on the west side of the street crossing. The driver of the buggy was sitting on the left or north end of the buggy seat, and says that as she entered upon the crossing of Fourth street, and again as she reached the middle of the crossing and was about to make the turn, she leaned forward, looked around, and saw the car had stopped. At or about the time she made the turn she says the traffic policeman gave a signal which she interpreted as being for her to proceed, and, driving around the policeman, she turned to the left to cross the track on her way up Fourth street. The horse, ordinarily gentle, was somewhat restive on this occasion and difficult to hold, and was moving at a brisk walk or trot. At about the time the buggy began to turn north the car resumed its movement to the east, bringing its fender into collision with the wheel of the buggy which had not cleared the track. As a result of the collision the buggy was overturned, or so nearly overturned that plaintiff fell out, receiving bruises and injuries of which she complains. The motorman in charge of the car testifies that, having stopped as he came to the crossing, he started again on signal of the policeman, and, while he saw the buggy he assumed that it was proceeding eastward, and that its turn to the north was a surprise to him and too late to bring the car to a full stop, though it did stop almost immediately after the collision. Whether the motorman sounded his bell as he entered upon the crossing is a subject of dispute in the testimony. The distance the car moved from its stopping point to the point of collision was from 30 to 40 feet. The motorman says the car was moving at not more than 2 to 3 miles per hour, and that under such circumstances he could ordinarily stop the car within 2 to 6 feet. He saw the policeman signal the women to proceed before he received the signal directed to himself. It should also be said the women testify that as they came to the point where they turned to the north an automobile coming from the south on Fourth passed to the north on signal of the policeman, and they followed immediately in its wake across the track.
The negligence charged by the plaintiff is: (1) In operating the car over the crossing at an excessive rate of speed and without exercising ordinary care in observing the track ahead; (2) in operating the car without having it under such control that it could be stopped in time to prevent the collision; and (3) in failing to ring the bell or give other warning of the approach of the car.
The answer is a denial of the charge of negligence. At the close of the plaintiff's evidence, and again at the close of all the evience, defendant moved for a directed verdict in its favor because of failure of evidence to sustain the charge of negligence against the defendant, and because the evidence shows the plaintiff chargeable with contributory negligence as a matter of law. These motions were denied, and upon submitting the issues to the jury a verdict was returned for plaintiff for $700.
The numerous errors assigned may be grouped under three heads: First, the denial of the motions for a directed verdict; second, the refusal of the court to give certain requested instructions to the jury; and, third, the charge to the jury given on the court's own motion. In this order we will consider them.
[1] I. Should a verdict have been directed for the defendant? To sustain the position taken by appellant at this point the court must find as a matter of law that no evidence was adduced having any fair tendency to show want of proper care on the part of defendant's motorman in the management and control of the car, or the court must find as a matter of law that there is no evidence on which the jury could properly find plaintiff herself was free from contributory negligence. Without attempting to rehearse the evidence, we have to say we think neither proposition can be affirmed. So far as the first point is concerned, giving the evidence, as we must, its most favorable construction in support of the court's rulings and the jury's verdict, the jury could properly find that the motorman, starting from a point from 30 to 40 feet west of the point of collision, with his car under such control that he could stop it in a distance of 2 to 6 feet, and with his face in direction to see the crossing and all persons and vehicles in that vicinity, should, in the exercise of reasonable care, have discovered and realized the peril in time to avoid the injury. That conclusion is emphasized when we add that there was evidence which the jury...
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