Joyner v. The Interurban Ry. Co.

• Decision Date: 27 November 1915
• Docket Number: 30437
• Parties: W. H. JOYNER, Appellee, v. THE INTERURBAN RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

154 N.W. 936

172 Iowa 727

W. H. JOYNER, Appellee, v. THE INTERURBAN RAILWAY COMPANY, Appellant

No. 30437

Supreme Court of Iowa, Des Moines

November 27, 1915

Appeal from Dallas District Court.--HON. LORIN N. HAYS, Judge.

ACTION at law to recover damages for a personal injury. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

White & Clarke and Parker, Parrish & Miller, for appellant.

E. J Kelly, for appellee.

WEAVER J. DEEMER, C. J., EVANS and PRESTON, JJ., concur.

OPINION

WEAVER, J.

The defendant operates an interurban railway, the cars of which enter the city of Des Moines over a track running west on Locust Street, from which it turns south on Fourth Street. The plaintiff was driving an automobile north on Fourth Street and approaching the Locust Street crossing on the east side of the car track. At the same time, one of the defendant's cars came up from the east on Locust and, as it turned south into Fourth, a collision occurred between the car and the automobile, to the injury of the latter. The plaintiff charges that this injury was occasioned by the neglect of the defendant, in that its employees in charge of the car approached and turned the corner without warning or signal, and that, though plaintiff, on discovering the car, promptly stopped his automobile at some distance from the car, said employees were either not keeping a proper lookout, or saw the peril and, without regard thereto, negligently failed to stop and negligently ran the car into collision with the automobile, without fault or negligence on plaintiff's part. The defendant denies the charge of negligence on its part and alleges that the collision was due to the negligence of the plaintiff himself.

Upon most of the material facts, there is a decided conflict of testimony. The plaintiff testifies that, when he discovered the approach of the car, he applied the brakes and stopped his automobile while the car was still 15 feet away, with the intention of backing out of danger; but in some manner he "killed" his engine, and defendant's car continued to come on around the turn and into collision with him. In this he is corroborated by the two persons riding with him. On the other hand, defendant's motorman swears that he was making the turn very slowly, at a rate of not over a mile an hour, and that, seeing that plaintiff was not going to stop, he stopped the car and that, as it was standing still, plaintiff ran his automobile into it. This witness is also corroborated. There is also evidence tending to show that, if defendant's car was rounding the corner at not more than a mile an hour, the motorman could have stopped it almost instantly.

I. The first and principal point presented by the record is whether there was evidence sufficient to take the case to the jury on the question of defendant's alleged negligence. An examination of the record makes it quite clear that the trial court did not err in refusing to hold, as a matter of law that no negligence had been shown. When the driver of the automobile and the motorman of the car discovered each other and appreciated the danger of a collision if both continued their course, they were 15 feet apart, according to plaintiff, or about 10 feet, according to the motorman. They were then each in duty bound to do what ordinary prudence required to avoid collision, and, if necessary to that end, they should have stopped. This they evidently recognized, for each swears that he did stop. If both were correct, then no collision would have occurred. If one of them stopped and the other drove on and brought about a collision, then the latter was clearly...