Mangan v. Des Moines City Railway Co.

• Decision Date: 12 May 1925
• Docket Number: 36392
• Citation: 203 N.W. 705,200 Iowa 597
• Parties: CORA MANGAN, Appellant, v. DES MOINES CITY RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

203 N.W. 705

200 Iowa 597

CORA MANGAN, Appellant, v. DES MOINES CITY RAILWAY COMPANY, Appellee

No. 36392

Supreme Court of Iowa, Des Moines

May 12, 1925

REHEARING DENIED OCTOBER 2, 1925.

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

ACTION for damages for personal injuries. The opinion states the primary facts. At the close of plaintiff's evidence, upon motion of the defendant, the jury, by direction of the court returned a verdict for the defendant. Judgment was entered against plaintiff for costs. Plaintiff appeals.

Reversed.

C. C Putnam and Guy S. Calkins, for appellant.

W. H. McHenry and Corwin R. Bennett, for appellee.

DE GRAFF, J. FAVILLE, C. J., and EVANS and VERMILION, JJ., concur.

OPINION

DE GRAFF, J.

The trial court, upon the conclusion of plaintiff's testimony, directed a verdict for the defendant. The ruling is the provocation for this appeal. Two questions arise: (1) Did the evidence of plaintiff, offered in support of the pleaded negligence, present a jury question? (2) Was the plaintiff guilty of contributory negligence as a matter of law?

The instant case is one of novel impression in this state, although many decisions from other jurisdictions are presented for our consideration in briefs and arguments. The difficulty lies in the differentiation of the cited decisions on the fact side.

Let us first inquire what are the specifications of negligence pleaded by the plaintiff in her petition. The allegation are: (1) The maintenance by the defendant at the place of the accident of a so-called "safety zone," which was, in fact, not a safety zone, but which, by the nature of its construction, misled the plaintiff, and caused her to believe that the area of such zone in which plaintiff stood was a safe place in which to stand, to permit the passing of the defendant's street cars; (2) the failure on the part of the operators of the street car to give warning to the plaintiff that the spot wherein she was standing, within the markings of the so-called safety zone, was an unsafe place to stand, by reason of the fact that the said street car, operated at such time and place, in rounding the curve would swing out and over the spot; (3) the failure of the motorman to stop said street car after the position of danger of plaintiff became known to him.

What are the record facts? The accident occurred at Second and Locust Streets in the city of Des Moines, and was caused by the rear end of a street car operated by the defendant, which struck the plaintiff as the car rounded a curve at said intersection. Locust Street extends east and west, and Second Street, north and south. The street car, known as a Douglas Avenue car, approached from the north on Second Street, and turned round a curve to the east on Locust Street. Plaintiff was not a prospective passenger on the car that struck her, but intended to become a passenger on a west-bound car. The accident happened about 5 o'clock on the afternoon of July 6, 1922. Apparently, it was a busy day in Des Moines. The city market was open, and a circus was in town. It was also the hour when many persons were homeward bound from their places of employment. Plaintiff had just left the city market house, at the northwest corner of Second and Locust Streets, and was intending to cross Second Street to the northeast corner of the intersection, to take passage on a west-bound street car for her apartment at 1107 1/2 West Walnut Street. As she left the curb, she observed the line of traffic, the approach of the street car in question, and also an automobile coming from the same direction. She stopped in what is known as a "safety zone," and remained standing there until the rear end of the street car struck her, as it swung out in rounding the curve. At the point of intersection, it is shown, a street car could be operated on a straight-ahead track directly south, as well as around the curve to the east. Both of these tracks were visible from the spot where plaintiff was standing. Plaintiff did not know that the car in question intended to round the curve. Her testimony is as follows:

"The car coming from the north had stopped there [north of the intersection], loaded some passengers and unloaded; and, as I stood there just a few moments, the motorman was looking out of the window toward me. He looked at me when he started the car up, and I turned, expecting the car to go straight ahead, and was waiting to see it pull on up past me, to get my chance when the traffic went east and west, to cross. I did not at that time know which way the Douglas car went from that corner. I did not at that time know that the car would turn to the east. I never did. I saw the safety-zone sign, and that is why I stopped in there. When I stepped into the zone, the safety-zone sign was standing in the southwest corner of the zone, right in the corner. I stood right by the side of that, inside of the zone. I stood inside of the zone to the north. The car was standing there while I stood by the safety-zone sign. I heard him release the brakes for the car to go ahead. Then I turned and looked southeast. Then I was struck and knocked down."

The safety-zone system of the city of Des Moines was inaugurated by the defendant city railway company, and was approved by a resolution of the city council of the city of Des Moines. The resolution read as follows:

"Whereas, the Des Moines City Railway Company desires to establish safety zones in the loop district for the safety and convenience of the loading public, and to expedite the loading of passengers during the rush hours, said safety zones to be designated by metal markers painted white and marked 'safety zone,' the company to furnish the markers and be responsible for the placing and care of the same. Therefore, be it resolved by the city council of the city of Des Moines that the Des Moines City Railway Company be, and is hereby, authorized and directed to establish safety zones at such places as may be determined by the supervisors, and that no parking of cars be permitted inside of the safety-zone limits after they have been placed."

The zone in question was placed in conformity to the quoted resolution; and it is contended by the appellant that it was constructed in such a manner that it extended so far south that, when any of the cars coming from the north turned toward the east around the curve, the rear end of the street car so turning would pass over part of the area marked out as a safety zone. This contention is supported by the evidence. A primary fact question is suggested at the threshold of this opinion: Could the jury have found from the evidence that the motorman of the street car in question knew that the place occupied by the plaintiff was a position of peril to her? An affirmative answer must be given.

We next inquire, as a matter of law, whether a motorman of a street car has the right to assume that an adult pedestrian will not stand or remain so close to a street railway track as to be struck by the rear end of a car as it swings out in rounding a curve. No answer can be given that will afford a rule of universal application. The answer must be governed by fact limitations. It is the knowledge of possible injury, and not the certainty of it, that imposes the duty upon the operator of a street car to use all reasonable means to avoid injury.

"* * * operatives cannot speculate on the probability or not of injuring one in a perilous position." Paris Transit Co. v. Fath (Tex. Civ. App.), 216 S.W. 482.

It is said in Birmingham R., L. & P. Co. v. Williams, 158 Ala. 381 (48 So. 93):

"While it is true that a motorman may, upon seeing a person upon the track, assume that he will turn aside from the dangerous position and out of the way of the car, yet the law does not accord to him the right to indulge the assumption beyond the time when the person's danger is seen to be imminent."

See, also, Randle v. Birmingham R., L. & P. Co., 158 Ala. 532 (48 So. 114).

In Hayden v. Fair Haven & W. R. Co., 76 Conn. 355 (56 A. 613), it is held that the motorman's right to presume that plaintiff was aware of the danger and would get out of the way is subject to the limitations, "until it is apparent, or by the exercise of reasonable diligence would be apparent to him, that the person is in danger, and is not aware of the danger, or is so situated that he cannot avoid the danger."

To what extent, if at all, did the plaintiff have the right to rely on the information imparted to her by the markings of the safety zone in question? The defendant initiated and maintained this zone, and its agent had supervised its location. The defendant railway company created the situation, so far as the safety zone is concerned. It will be presumed that the defendant knew that a person occupying the particular spot which the plaintiff occupied, would be in danger of being injured by the overswing of a car rounding this particular curve. Was the plaintiff bound to know this fact?

Pedestrians and street cars had the equal right upon this intersection. It is quite manifest that a pedestrian on said street could be misled, under the circumstances of this case; and it was for the jury to say whether or not the defendant was chargeable with negligence in maintaining the device as it was maintained, and whether or not the motorman exercised reasonable and ordinary care in rounding the curve in the manner shown, knowing, or being in a position to know, that plaintiff was occupying a perilous position. If we concede that the duty imposed upon the parties is reciprocal, nevertheless the law requires a motorman to keep a vigilant lookout to avoid injuries to persons lawfully upon the street. This is elementary. Borg v. Des Moines City R. Co....