Lynch v. Des Moines Ry. Co.

• Decision Date: 15 November 1932
• Docket Number: No. 41243.,41243.
• Parties: LYNCH ET AL. v. DES MOINES RY. CO.
• Court: Iowa Supreme Court

215 Iowa 1119

245 N.W. 219

LYNCH ET AL.

v.DES MOINES RY. CO.

No. 41243.

Supreme Court of Iowa.

Nov. 15, 1932.

Appeal from District Court, Polk County; Frank S. Shankland, Judge.

Action by the plaintiffs, as administrator and administratrix of the Estate of John C. Lynch, to recover damages for his death, alleged to have been caused by reason of the negligence of the defendant-company, through its motorman. Defendant's answer consisted of a general denial. Trial to the court and a jury. Verdict and judgment for the plaintiff. Defendant appeals.

Affirmed.

Corwin R. Bennett, of Des Moines, for appellant.

Vernon W. Lynch and Ralph N. Lynch, both of Des Moines, for appellees.

WAGNER, J.

In this action, the plaintiffs seek to recover damages for the death of John C. Lynch, alleged to have been caused by reason of negligence of the defendant's motorman. Among other grounds of negligence contained in the petition, the plaintiffs aver that the motorman was guilty of negligence in the following particular: “In negligently failing to sound a warning of his approach and/or in failing to reduce the speed of his street car by application of the brakes and/or failing to stop said street car after he had discovered the decedent in a position of danger.” This quoted allegation raises the question of defendant's liability under the doctrine familiarly known as “last clear chance.”

[1][2] At the close of plaintiffs' evidence, the defendant moved for a directed verdict in its favor, and, at the close of all of the evidence, its motion for a directed verdict was renewed. This motion was overruled by the court and the case was submitted to the jury upon the sole question as to whether plaintiffs were entitled to recover under the “last clear chance” doctrine. The appellant contends that the court erred in overruling said motion. The appellees, in their argument allege: “Decedent was admittedly guilty of contributory negligence.” Therefore, the question for our determination at this point is whether, under the record, the jury could properly find for the plaintiffs and against the defendant under the “last clear chance” doctrine. The legal principles involved in this doctrine are well established. In Wilson v. Illinois Central Railroad Co., 150 Iowa, 33, at page 41, 129 N. W. 340, 344, 34 L. R. A. (N. S.) 687, this court declared: “The doctrine of last fair chance presupposes negligence on the part of the party injured and proceeds upon the theory that notwithstanding this negligence, if the other party, being cognizant of that negligence and of the peril in which the party had placed himself, failed to take the necessary precautions to avoid injuring him, he is liable on the theory that he had a fair chance to avoid the catastrophe by the use of ordinary care and his failure to exercise it is in such cases the proximate cause of the injury.” The doctrine of “last clear chance” is applicable only if the defendant, or the motorman in the instant case, had actual knowledge of the perilous position of the other party and failed to use due care to avoid the injury which, by the exercise of due care, after acquiring the knowledge, could have been avoided. See Graves v. Chicago, Rock Island & Pacific Railway Company, 207 Iowa, 30, 222 N. W. 344;Carr v. Inter-Urban Railway Company, 185 Iowa, 872, 171 N. W. 167;Waters v. Chicago, Milwaukee & St. Paul Railway Company, 189 Iowa, 1097, 178 N. W. 534;Williams v. Mason City & Fort Dodge Railway Company, 205 Iowa, 446, 214 N. W. 692;Stanoshek v. Chicago, Rock Island & Pacific Railroad Company, 198 Iowa, 62, 199 N. W. 310;Radenhausen v. Chicago, Rock Island & Pacific Railway Company, 205 Iowa, 547, 218 N. W. 316. Many other cases could be cited on this proposition. The knowledge by the defendant of the perilous position of the other party may be proven by circumstantial, as well as by direct, evidence. See Williams v. Mason City & Fort Dodge Railway Company, 205 Iowa, 446, 214 N. W. 692;Carr v. Inter-Urban Railway Company, 185 Iowa, 872, 171 N. W. 167;Wilflin v. Des Moines City Railway Company, 176 Iowa, 642, 156 N. W. 842. In Carr v. Inter-Urban Railway Company, 185 Iowa, 872, 171 N. W. 167, 169, we said: “And if it appears from the evidence that he [the motorman] had a clear unobstructed view of the track, the jury may infer from his duty to keep a lookout ahead that he in fact saw the injured person in a position of peril. This inference may, of course, be rebutted by evidence to the contrary.”

In Wilflin v. Des Moines City Railway Company, 176 Iowa, 642, 156 N. W. 842, 844, we declared: “Of course, the motorman must have seen the person in peril on the track ahead in time to have avoided a collision, according to the majority in Bourrett v. Chicago & N. W. Ry. Co., 152 Iowa, 579, 132 N. W. 973, 36 L. R. A. (N. S.) 957, but on the duty to keep a lookout and a clear field of vision may be based a finding that he did see in a suit against a street railway.”

In Williams v. Mason City & Fort Dodge Railway Company, 205 Iowa, 446, 214 N. W. 692, 695, we said: “The legal rule is that the train operator in charge must know the ‘peril’ of appellee in order to fix liability upon appellants under the doctrine of ‘last clear chance,’ yet such knowledge and the time the same is acquired may be proved by circumstantial as well as direct evidence.”

[3] It is a familiar rule that the party to the litigation against whom a verdict is asked to be directed is entitled to have the evidence considered in the light most favorable to him. This rule is so well established as to require no citation of authorities, but see Albright v. Chicago, Rock Island & Pacific Railway Company, 200 Iowa, 678, 205 N. W. 462;Middleton v. Omaha & Council Bluffs Street Railway Company, 209 Iowa, 1278, 227 N. W. 915;Harvey v. Knowles Storage & Moving Company (Iowa) 244 N. W. 660;Hamilton v. Wilson (Iowa) 240 N. W. 685;Robertson v. Carlgren, 211 Iowa, 963, 234 N. W. 824.

[4] With the foregoing well-established rules of law before us, we now turn to the evidence upon this decisive question. The decedent was killed on October 24, 1930, in a collision which occurred about 4:30 a. m. of that day, between a milk wagon drawn by a single horse, driven by the decedent, and a street car upon the appellant's track. There was no one in the street car at the time in question, except the motorman and one passenger. The collision occurred at the intersection of East 9th street, which runs north and south, and Morton avenue, which crosses East 9th street at a right angle. When the horse was hitched to the wagon the distance from the nose of the horse to the extreme rear of the wagon was approximately 18 feet. The street car track is upon East 9th street, and at the time in question, the street car was going south and the decedent was going east. The distance between the curbs on Morton avenue at the intersection is 26 feet and 2 inches; the distance between the curbs on East 9th street at the intersection is 34 feet and 6 inches. There are two street car tracks upon East 9th street at the place of collision, and the car was running southward on the west track. The distance from the west curb on East 9th street and the west rail of the west track is 9 feet and 9 inches, and the distance from the west curb line of said street to the east rail of the west track is 14 feet and 8 inches. The collision occurred about five or six steps, 15 to 18 feet, south of the north curb of Morton avenue, the street car striking the hub of the left hind wheel. The next street north of Morton avenue is known in the record as Grand View avenue. In approaching from the north there is a single track until Grand View avenue is reached, at which point there is a switch and from there on southward, past Morton avenue, there are two tracks. There was no obstruction to prevent the motorman from seeing the milk wagon as it approached the intersection from the west. The motorman testified that he first saw the milk wagon when he was about 30 feet north of the switch on the single track. The distance from the north curb of Morton avenue to the south curb of Grand View avenue is 308 feet and 3 inches. Therefore it is shown by the record that the motorman saw the milk wagon when he was more than 300 feet from the point of collision. The sole passenger upon the street car was sitting in the third seat from the front, on the west side of the car, and he testified that, as the street car approached the switch near Grand View avenue, he saw the horse approaching from the west, the intersection of East 9th and Morton avenue. The motorman testified that he continued to watch the milk wagon from the point where he first saw it, down until the scene of the accident. “I watched him continually from a point 30 feet north of Grand View Avenue until the front end of my car was approximately even with the side walk line on the north side of Morton Avenue.” It thus appears that, according to the motorman's testimony, he continually saw the horse and milk wagon driven by decedent until he was within a very few feet of the place of the collision.

Walter Reid, a boy between thirteen and fourteen years of age, a disinterested witness, was delivering papers in the early morning, and he saw the accident and related the circumstances surrounding the same. He came from the west on Morton avenue and followed a path running northeast across the vacant lot lying to the north of Morton avenue and the west of East 9th street. The east end of this path connects with a short sidewalk running from the sidewalk on the west side of East 9th street to the curb. The distance from this point south to the north curb on Morton avenue is 82 feet and 3 inches. He testified, “When I started on the path the milk wagon and horse were just starting down a little--just a little down an approach of the hill about one half way down the block. At that time the horse was going 7 or 8 miles an hour. The horse...