Kern v. Des Moines City Ry. Co.
| Decision Date | 24 November 1908 |
| Citation | 118 N.W. 451,141 Iowa 620 |
| Parties | LULU KERN, Administratrix of the Estate of V. D. KERN, Deceased, Appellant, v. THE DES MOINES CITY RAILWAY CO., Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED TUESDAY, MARCH 16, 1909.
Appeal from Polk District Court.--HON. JESSE A. MILLER, Judge.
ACTION at law to recover damages for the death of V. D. Kern, due as is alleged, to defendant's negligence in operating its street cars on one of the streets in the city of Des Moines. At the conclusion of plaintiff's evidence the trial court on motion directed a verdict for the defendant, and plaintiff appeals.
Reversed.
Gillespie & Bannister and Thos. A. Cheshire, for appellant.
N. T Guernsey and Parker, Hewitt & Wright, for appellee.
As there was a directed verdict for defendant at the close of plaintiff's testimony, we must take that view of the case most favorable to plaintiff which the evidence tends to disclose, without, of course, indicating that this is the one which should obtain upon trial by jury. All reasonable and legitimate inferences which the testimony will bear must be resolved in favor of the plaintiff; and, if on the whole case reasonable minds might differ regarding the weight of the testimony or the inferences to be drawn therefrom, the conclusions are for a jury, unless, giving to the testimony its most favorable aspect, no other conclusion may fairly be drawn save the one arrived at by the trial court. We may say at the outset that we are favored with a copy of the opinion of the trial court, announced when passing on the motion to direct, from which it appears that the motion was sustained on the ground that plaintiff's intestate had not shown himself free from contributory negligence. This much for the reason that with this thought in mind the case may be better understood as we proceed.
V. D. Kern was an insurance agent, living at 1334 East Walnut Street in the city of Des Moines. He was at the time of his death 32 years of age, and had a wife and children dependent upon him. He had been troubled with rheumatism, but it is claimed had recovered before the accident in question. Grand Avenue in the city of Des Moines is one of the principal streets in that city, running from its western limits eastward past the State Capitol to the State Fair Grounds. For a part of the way on the east side of the Des Moines River the defendant, an electric street railway company, occupied this street with its tracks--the tracks being double from Twelfth to Fourteenth Streets on that side of the river. At the crossing of Grand Avenue with East Thirteenth Street the rails of these tracks are four feet and eight inches apart, and the south rail of the north track is four feet and four inches distant from the north rail of the south track. It was Kern's custom to take defendant's street car in going to and returning from his home, and he almost universally took the car at the junction of Thirteenth Street with Grand Avenue. It was the habit and custom of the street car company to stop its cars for the ingress and egress of passengers at the far side of the crossing; that is to say, it passed over the street intersections with its cars before stopping to receive or discharge passengers. There is an ordinance of the city forbidding a greater speed of street cars than eight miles per hour in the business district and than twelve miles per hour in the residential section. The junction of Thirteenth Street and Grand Avenue and all other places in the immediate vicinity are in residential sections. The annual state fair was in progress on the grounds of the society at the east end of Grand Avenue during the last week of August of the year 1906, and the street cars were generally heavily loaded, and ran at frequent intervals over the tracks of the defendant company on East Grand Avenue. The cars and trains ran both east and west over and upon the double tracks above described, the west-bound cars taking the north and the east-bound cars the south tracks. East Walnut, where Kern lived, is south of Grand Avenue, and to take the west-bound cars he went north on Thirteenth to Grand, crossed over the south track to the north one, and to take the car was obliged to go to the northwest corner of the street intersection where the cars were stopped. East Twelfth Street is approximately three hundred and seventy-five feet west of East Thirteenth, and East Fourteenth is about seven hundred feet east of East Thirteenth. The grade is downward from Twelfth to Thirteenth, and for some distance eastward, from Twelfth to Thirteenth being 1.22 per cent. At or about two o'clock in the afternoon Kern started from his home with the declared purpose of visiting his father, who lived on the west side of the river. He went from his home north on the east side of Thirteenth street, came to Grand avenue, and there it is claimed saw one of defendant's trains slowly coming from the east, made up of the usual car and a trailer, close to the intersection of Grand avenue with Thirteenth street. At the time that Kern reached the southeast corner of the intersection of these streets there was an eastbound car at the junction of Twelfth street with Grand, three hundred and seventy-five feet to the westward from Grand and Thirteenth. A west-bound car had passed just before Kern came to Grand avenue, and it is evident from the entire record that Kern was intending to take the westbound train, which was then nearing the street intersection when he reached the junction of Thirteenth and Grand. He had started from home with the intention of going to the west side of the city, had gone to the place where he usually took the street cars, and was observed passing from the junction of Thirteenth and Grand at the southeast corner, northward and a little west toward the northwest corner of these street intersections. As he approached the tracks, the west-bound train, instead of passing over the street intersection and stopping at the far side thereof, stopped in the middle of the street intersection for some purpose, and Kern was prevented from getting across to the north side of the north track to take the car, which he was evidently intending to board. Just here we find the most serious dispute in the case. On the one hand, it is contended that there is no proof that Kern intended to take the west-bound car, and no testimony that he saw this car, which was now very close to the street intersection. It is also contended, on the behalf of the railway company, that the west-bound car was stopped because Kern was either upon the track or close to it and to avoid striking him. We have set forth enough of the record to show that a jury was justified in finding that Kern was intending to take this train, and had started across Grand Avenue for that purpose. Whether or not he saw the west-bound train which he was intending to take as he came to the street intersection was a question for a jury, under all the circumstances disclosed, which in part consisted of some testimony that deceased looked in the direction of that train as he left the curb to cross the street.
There was also testimony from which a jury might have found that the west-bound train was stopped at an unusual place because it had carried by some passengers who wished to alight at Fourteenth Street east, and desired to have them get off as soon as possible. As these were jury questions, we must assume, for the purposes of this appeal, that they would have been resolved in favor of plaintiff. We have, then this west-bound car stopping before crossing the street intersection of Thirteenth Street, and directly in front of deceased as he was pursuing his way toward the northwest corner of the street intersection. Before stopping, the bell was rung for the crossing, and considerable noise attended the act of slowing down. A jury was authorized to find that immediately upon the stopping of the west-bound train in the path which deceased was pursuing, he started eastward to go around the latter, and that while passing along the side of the trailer, he was struck by the east-bound car which he had seen at Twelfth Street as he had started to cross Grand Avenue to take the west-bound train. This east-bound car was running at a speed of from fifteen to twenty-five miles an hour, and a jury may have found that it was running at even a greater rate than the highest here named, and that no bell or gong was sounded until just as the car reached and ran over plaintiff's intestate. The car was going so fast that it ran from one hundred and twenty-five to one hundred and fifty feet after it struck Kern before it was brought to a stop. There is no direct testimony that the motorman on the east-bound car saw deceased until just as it struck him; but, as no signal was given until immediately before the collision, a jury may have concluded that he did not see Kern until just as the car was about to strike him. When Kern was struck, or just immediately before that time, the west-bound train was standing, discharging passengers; but the motorman on the...
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