Long v. Ottumwa Ry. & Light Co.

• Decision Date: 25 September 1913
• Court: Iowa Supreme Court
• Parties: LONG v. OTTUMWA RY. & LIGHT CO.

162 Iowa 11

142 N.W. 1008

LONG

v.OTTUMWA RY. & LIGHT CO.

Supreme Court of Iowa.

Sept. 25, 1913.

Appeal from District Court, Wapello County; D. M. Anderson, Judge.

Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.McNett & McNett, of Ottumwa, for appellant.

I. L. Duke and Jaques & Jaques, all of Ottumwa, for appellee.

WEAVER, C. J.

The plaintiff, a boy 9 years and 5 months old, was struck and severely injured by an electric car which was being operated along the track of the defendant's railway in the city of Ottumwa. He alleges that the accident was occasioned by the negligence of the defendant and without contributory negligence on his part. The negligence charged is that the car was being operated at an excessive and dangerous rate of speed; that the car was being operated at a speed in excess of the limit fixed by the ordinances of the city; and that the driver of the car neglected and failed to give any warning of its approach by ringing a bell or sounding a gong. It is further alleged that the driver saw the lad in danger and by the exercise of reasonable care could have avoided injuring him but failed to do so. The defendant admits that plaintiff was injured by one of its cars but denies all other allegations of the petition. The issues were tried to a jury and verdict returned in favor of plaintiff for $7,500. It should be noted also that plaintiff's father assigned to him all claim against defendant for loss of the son's service and for the expense of his care, nursing, and medical attendance, and that these items were included in the petition and the demand for judgment. Defendant's motion for new trial was denied, and, judgment having been entered upon the verdict, defendant appeals.

[1] I. In an elaborate and carefully prepared brief, counsel for appellant earnestly urge the proposition that as a matter of law plaintiff is chargeable with contributory negligence and therefore not entitled to recover damages. Before entering upon a consideration of this legal phase of the case, it is essential that we state as briefly as practicable the facts which the evidence tends to establish. In so doing we, of course, give to the testimony of the witnesses the most favorable interpretation of which it is fairly capable in support of the verdict of the jury.

[2] It is true that in many respects the facts as here recited are the subject of dispute, but the credibility of the witnesses and the weight to be given their version of the accident and its attending circumstances were matters for the jury alone. At the place where the injury occurred the street railway track is laid along the middle of Wabash avenue, which extends east and west. The avenue is here crossed by James street extending north and south. The avenue and street are each 60 feet in width. Plaintiff lived with his parents on the northwest corner of the intersection, and immediately south of his home on the opposite side of the avenue or southwest corner of the intersection lived Mr. Cohagen. The sidewalks on each side of James street were connected by crosswalks which intersect the avenue and railway track at right angles. The line of Wabash avenue is straight, and a car moving thereon is visible in either direction from the crossing for a distance of several blocks. The car which struck the boy had been to the end of its run a distance of about 650 feet to the east of James street and there turned about for the run westward. It was about 6:30 in the evening of April 8th. The car was at this point carrying no passengers and was occupied by the conductor and motorman alone. The boy was struck upon the western crosswalk extending between the Cohagen corner and the home of the Longs. He had called at the Cohagens, where some one had given him a “cotton chicken,” which we assume to have been one of the familiar Easter toys designed for the amusement of children. With the chicken in his hand he started on a run toward home, taking his way upon or along the west crossing of the avenue. His attention was absorbed in looking at the toy and he did not see or hear the approaching car until too late to escape. There is evidence that when he was within a short distance of the track (a few feet at most) a girl at the Cohagen house saw his peril and called to him, and that for an instant he paused or hesitated but still did not seem to see the car and continued to run to the north until he was struck by the fender of the car and rolled under the wheel, which crushed his foot and otherwise injured him. According to his own story he did not hear the warning cry, or, if he did, he failed to comprehend it and did not discover the car bearing down upon him.

The testimony of the motorman and conductor is to the effect that their first view of the plaintiff disclosed him standing still on the crossing, and that, supposing that he was waiting there for the car to pass, they did not at first check their speed, and that when they reached a point about in the middle of James street the boy ran forward and into collision with the car. They claim that he did not reach the track but came sufficiently near to be struck by the corner of the car or vestibule. Bearing on the question of contributory negligence on plaintiff's part as well as on the charge of negligence against the defendant, it should further be said that there was evidence tending to show that the car was then being operated at a speed estimated as high as 20 miles an hour, and that it approached the crossing without sounding the gong or bell or other warning than such as would naturally be given by the noise arising from its movement. The plaintiff was at this time 9 years and 5 months old, a boy of average brightness of mind. He was in good health and had unimpaired senses of sight and hearing. He had lived at this place for several years and was accustomed to the sight of cars moving over defendant's track. We have omitted also to note at the proper place that upon this part of defendant's railway it operated but a single car which was scheduled to pass this corner to the west at intervals of 20 minutes.

[3] In support of their contention that plaintiff should be charged with contributory negligence as a matter of law, counsel have cited and quoted from a large number of authorities where the rule has been applied to children of ages varying from 5 to 14 or more. The precedents very generally agree in stating the rule that, in considering the question of contributory negligence of a child, reference must be had not only to the bare facts of what he did or omitted to do but due consideration must be given also to his age, experience, and maturity or immaturity of judgment, and in this connection, especially where the child is quite young, the power and influence of childish instincts are not to be overlooked. McEldon v. Drew, 138 Iowa, 395, 116 N. W. 147, 128 Am. St. Rep. 203;Railway Co. v. Sherman, 25 Colo. 114, 53 Pac. 322, 71 Am. St. Rep. 116;Huff v. Ames, 16 Neb. 139, 19 N. W. 623, 49 Am. Rep. 716. While courts have sometimes sought to fix an age at which the presumption of capacity of a child to negligently contribute to its own injury begins, it has been better said that “the law fixes no arbitrary period when the immunity of childhood ceases and the responsibility of life begins.” Nagle v. Railway Co., 88 Pa. 35, 32 Am. Rep. 413. Generally speaking, maturity of mind and judgment, capacity to act promptly, intelligently, and efficiently in caring for one's self in the presence of danger, and ability to recognize the imminence of threatened peril in time to avoid injury therefrom is a question of fact depending upon arguments, inferences, and conclusions to be drawn from all the circumstances of the case. It is a question upon which the man on the bench holds no advantage over the average man in the jury box. The varying capacities of children are matters coming under the daily and hourly observation of jurors no less than of lawyers and courts. It requires no scholastic training or study of legal precedents to qualify them to make fair and intelligent findings upon an issue of this character.

With this for a preface, we turn for a moment to the authorities upon which appellant places reliance. They are too numerous to permit of their review in detail. Taken in connection with the precedents cited by appellee and many others to which no reference has been made, they indicate that, while the statement of the general rule is not the subject of substantial controversy, its application has given rise to a great variety of views, and that reconciliation of all the decided cases upon any consistent theory is impossible. It is to be remembered, and we mention it in no spirit of criticism, that the courts in some jurisdictions exercise the power to direct verdicts and particularly to pass as a matter of law upon questions of alleged negligence and contributory negligence much more freely than is done in other jurisdictions. Which is the better or more justifiable tendency we need not here consider.

[4] It is enough to say that the courts of this state are among those which always refuse to dispose of fact questions in a jury case as a matter of law if, upon any reasonable theory of the circumstances shown or admitted, honest and fair-minded men may arrive at different conclusions.

[5] Of the cases cited for appellant some are easily distinguishable from the one at bar; for example, cases in which the question is complicated by the admitted or proved trespass of the complaining infant. There are others, however, where children have been run over by railway cars in the public street under circumstances not very unlike those with which we have here to deal, and courts have held them without remedy because of their alleged contributory negligence. This has been applied in some instances to children of from five to eight...