Lundien v. Ft. Dodge, D.M. & S. Ry. Co.

• Decision Date: 14 May 1914
• Docket Number: 29,028
• Citation: 147 N.W. 308,166 Iowa 85
• Parties: E. M. LUNDIEN, Administrator, etc., Appellant, v. FORT DODGE, DES MOINES & SOUTHERN RAILWAY COMPANY, AND HOMER LORING AND PARLEY SHELDON, Receivers, Appellees
• Court: Iowa Supreme Court

147 N.W. 308

166 Iowa 85

E. M. LUNDIEN, Administrator, etc., Appellant, v. FORT DODGE, DES MOINES & SOUTHERN RAILWAY COMPANY, AND HOMER LORING AND PARLEY SHELDON, Receivers, Appellees

No. 29,028

Supreme Court of Iowa, Des Moines

May 14, 1914

Appeal from Webster District Court.--HON. C. E. ALBROOK, Judge.

ACTION at law for recovery of damages for personal injury, resulting in the death of the intestate. From judgment entered on a directed verdict for defendant, the plaintiff appeals.

Reversed.

Healy Burnquist & Thomas, for appellant.

B. J Price and Dyer & Dyer, for appellee.

OPINION

WEAVER, J.

The plaintiff's intestate was struck and killed by one of the defendant's trolley cars on a public crossing in Webster county. He had been visiting his mother, who resided a short distance west of the crossing, and was intending to take passage upon said car for his home in Ft. Dodge. The car was one employed in local traffic, and was accustomed to stop at all highway crossings to take on passengers. His mother and brother walked with him in the direction of the crossing, and stopped on the west side of the track until they discovered the car approaching from the south. The shed or platform where the passengers boarded the cars at that place was on the east side of the crossing and north of the highway. The country at this point is quite level, and the view along the track to the south was unobstructed for a distance of substantially a mile. The evidence for the plaintiff tends to show that when the car was still some six hundred or eight hundred feet to the south deceased, who had about one hundred and sixty feet to go, signaled the car to stop, and started on a run to make the crossing, and was struck while still on the track near the east rail. There is evidence further tending to show that the car came on at a very high rate of speed until it reached the crossing, and the motorman did not succeed in bringing it to a stop until it had overrun the crossing a distance estimated at from three hundred to seven hundred feet. Negligence is charged in the operation of the car, in that the motorman was driving it at a high rate of speed and did not stop or reduce such rate when properly signaled by the deceased. It is also charged that the motorman was negligent in failing to stop the car when he saw the peril of the deceased, or in the exercise of reasonable care ought to have seen it. At the close of plaintiff's testimony the court sustained defendant's motion to direct a verdict on the ground that deceased was shown to have been guilty of negligence as a matter of law. From the judgment entered on the verdict so returned, the plaintiff appeals.

The motorman, testifying as a witness, says he saw the three persons, two men and a woman, standing on the west side of the track for a distance of practically a mile, and saw the deceased start and run toward the crossing, but says he did not see him signal. He adds, however: "It was our custom to stop at that crossing if any one was there. When I discovered Mr. Swenson running toward the track, the car was going about twenty miles an hour. There was an automatic air brake on the car. The brakes and controllers were in good working order, and the equipment was in good order. I knew if the man did not stop, he wasn't going to get across. When I saw him running I believed he was running into danger." It also appears or there is evidence to the effect that the emergency brake was not applied until immediately after an alarm whistle was sounded, and that such alarm was not given until the car was "at the south cattle guard or right on the crossing."

The principal question we have to consider is whether, after giving the plaintiff the benefit of the most favorable construction of which the evidence is reasonably and fairly susceptible in support of his alleged cause of action, it still presents a case upon which the deceased must be held chargeable with contributory negligence as a matter of law. Under the conceded facts the question of defendant's duty toward the deceased, as well as the duty of the deceased with respect to his own safety, presents a twofold aspect. In one he is to be considered from the standpoint of an ordinary traveler on the public highway, and in the other as a person approaching the railway company's stopping place or station to take passage on an approaching car which he has signaled to stop. If we consider the case from the first point of view the intestate and the railway company had equal rights in the use of the crossing. This is not inconsistent with the other rule that when a traveler and a railway car approach a crossing so nearly at the same time that as a reasonably prudent person the traveler knows, or ought to know, he cannot go ahead without imperiling his safety, he is bound to yield precedence to the car. This is not because his right to cross is less regarded by the law, but because of the physical fact that both cannot use the place of crossing at the same time, and it is but reasonable care that he give way to the car, the movement of which is less readily controlled than his own. Gray v. R. R. Co., 143 Iowa 268, 121 N.W. 1097; Gray v. R. R. Co., 160 Iowa 1, 139 N.W. 934; Earle v. Traction Co., 64 N.J.L. 573 (46 A. 613).

The mere fact that a traveler as he approaches a crossing sees a car coming in is direction does not, as a matter of law, cast upon him the duty of waiting for it to pass, for if the car is at such distance that he may reasonably expect to cross in safety before its arrival, he may do so without becoming chargeable with want of due care, nor does he as a matter of law assume the risk of mistake in his calculation if by reason of the approach of the car at an excessive or negligent rate of speed a collision occurs. Patterson v. Townsend, 91 Iowa 725, 59 N.W. 205; Bruggeman v. R. R. Co., 147 Iowa 187, 123 N.W. 1007; Adams v. Electric Co., 138 Iowa 487; Railway Co. v. Carroll, 91 Ill.App. 356; Chauvin v. R. R. Co., 135 Mich. 85 (97 N.W. 160); McDermott v. Ry. Co., 89 A.D. 214 (85 N.Y.S. 807); Campbell v. Traction Co., 137 Cal. 565 (70 P. 624); Ward v. Ry. Co., 132 Iowa 578; Robkin v. Joline (Sup.), 114 N.Y.S. 98; Vandenbout v. Ry. Co., 129 A.D. 844 (114 N.Y.S. 760).

It is also a well-settled principle in all cases where the question of negligence is involved that one party cannot, by his want of care, put the other in danger and then excuse himself from liability on the ground that the one so injured did not use good judgment in extricating himself from a peril so induced. Gibbons v. Ry. Co., 155 Pa. 279 (26 A. 417); Kern v. Ry. Co., 141 Iowa 620, 118 N.W. 451.

In this case as we think there can be no question there was evidence to justify a finding of the defendant's negligence. Indeed it would take a most arbitrary court or reckless jury to come to any other conclusion. The car was one which was operated to accommodate local traffic, and stopped at all street crossings on signal of persons wishing to take passage. As a matter of common knowledge, a car being operated in this manner is of necessity slowed down as it approaches a stopping place, and brought under control by use of brake or controller. The evidence for plaintiff, we have already said, tends to show that when deceased took cognizance of the approach of this car it was some seven hundred to eight hundred feet away as he started to cross over to the proper side of the track for boarding it, a distance which is estimated at one hundred and sixty feet. Just as he started, and as he moved at a rapid run in that direction, he continued to signal for a stop, yet the car came on at such excessive rate of speed that it not only struck and killed him in the act of crossing, but continued a further distance of several hundred feet before it could be brought to a stop. These circumstances speak for themselves, and indicate that the car was being operated in a reckless manner. It was not for the trial court, nor is it for this court, to say that the evidence for the plaintiff in this behalf was untrue, or that the jury should not credit it or draw therefrom an inference of negligence. Assuming then, that the car was coming at a negligent rate of speed, it is not, we think, within the province of the court to say as a matter of law that deceased saw and knew of this negligence, or that he ought to have seen and known it. It is a manifestly just proposition that he could rightfully assume that the motorman would take cognizance of his signal and bring his car to a stop, or, if for any reason the motorman proposed to ignore the signal, that the car would at least make the crossing at a reasonable rate of speed. It is shown that the car was approaching from the south upon a considerable stretch of straight track over level bottom land. In other words, it was coming "head on," and the only view of it to persons at the crossing was directly in front. Such a position is obviously the most difficult one from which the observer can obtain an idea of the speed of an approaching car or train. There is no showing that deceased watched the car sufficiently to appreciate its speed, and we have no right to assume that he did. Nor was he required so to do if the distance was such that, assuming the car to be moving in a reasonable manner, he had time to cross in safety. Certainly we cannot undertake to say as a matter of law that with the car eight hundred feet, or even five hundred or four hundred feet away, approaching a crossing where it was to stop, deceased could not, as a reasonably prudent person, act upon the belief that he had ample time to take the other side of the track. To so hold would be to set at naught many precedents, and to establish a rule which, if adhered to, will...