McBride v. Des Moines City Ry. Co.

Decision Date13 November 1906
Citation134 Iowa 398,109 N.W. 618
PartiesMCBRIDE v. DES MOINES CITY RY. CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Polk County; Hugh Brennan, Judge.

Action to recover damages resulting to the estate of plaintiff's intestate by reason of his death, due to injuries received in a collision between a car operated by the defendant company and a hose wagon, belonging to the fire department of the city of Des Moines, on which the deceased, a member of the department, was riding. There was a verdict for plaintiff, and from the judgment rendered thereon defendant appeals. Reversed.N. T. Guernsey, for appellant.

Thomas A. Cheshire, for appellee.

McCLAIN, C. J.

The facts appearing in the record which are essential to the determination of the questions of law raised on this appeal are as follows: Plaintiff's intestate was a member of the paid fire department of the city of Des Moines, and in response to a fire alarm, about half past 10 in the morning, with eight other members of the department, he started on a hose wagon from the fire station on Eighth street going north. One Nagle was the driver of the wagon. Plaintiff's intestate rode in his proper place on a running board or step on the west side of the wagon, facing east and near the rear end. As the wagon approached the crossing of Grand avenue running east and west, on which there was a double track of defendant's railway, the driver saw a car coming from the west, and without checking the speed of the wagon drove on across the track on which the car was approaching. The car struck the rear wheel on the west side of the wagon, and deceased was violently thrown to the pavement and his skull was fractured. From this injury he died within a few hours.

1. After stating very elaborately and in great detail the claims of the parties as to the facts bearing upon the question of the negligence of the defendant's motorman, in charge of the car which collided with the hose wagon on which plaintiff's intestate was riding, and defining negligence, the court instructed the jury to consider “whether or not the motorman having charge of the running and operating of the car in question was negligent or not in not stopping or checking the speed of the car before the collision with the fire hose wagon occurred”; and he then proceeded to detail a variety of circumstances which the evidence for plaintiff tended to establish, such as the clearness and calmness of the day, the ringing of the bell on the hose wagon, and the distance at which such bell might be heard, the rate of speed of the wagon, etc., none of which were controlling on the question of the motorman's negligence. And he concluded the instruction with this sentence: “After carefully considering these facts, if they be facts, and all other facts and circumstances proved on the trial, if you believe from the preponderance of the evidence that the motorman by the use of the means at his command could have stopped the car, or checked the speed thereof, in time to have avoided the accident, and that he failed to do so, that would be negligence on his part; and his negligence, if he was so negligent, would be the negligence of the defendant, and your verdict should be for the plaintiff, unless you find the deceased, B. McBride, was negligent, and that his own negligence contributed to his injury in any degree, in which case you would find for the defendant.” The first objection urged to this instruction as a whole is that therein the court called to the attention of the jury the facts which the evidence tended to establish favorable to plaintiff's recovery, and omitted special reference to those relating to defendant's theory of the accident. This objection we think was well taken. An instruction was asked on behalf of defendant, calling attention to other circumstances which the evidence tended to establish, which should have been considered as bearing on the motorman's negligence, and which were favorable to defendant's contentions in the case. It was clearly improper for the court to thus emphasize the circumstances from which negligence might be inferred, and omit any reference to circumstances tending to support the opposite inference. Perhaps the court might properly have omitted to catalogue the circumstances which the testimony tended to establish bearing on the question of negligence, and simply have referred in a general way to the facts and circumstances proved on the trial. But in suggesting to the jury that they should take into consideration some of the circumstances which were favorable to the plaintiff, and omitting reference to others favorable to defendant, he put the case unfairly to the jury.

Another serious objection to the instruction is that the portion thereof above set out withdraws from the jury the question whether the motorman was negligent in not stopping the car or checking the speed thereof in time to have avoided the accident. There could be no question under the evidence as to the ability of the motorman by the use of the means at his command to stop the car or check the speed thereof in time to have avoided the accident, if he had endeavored to do so a sufficient length of time before the accident occurred, nor was there any doubt that he failed to stop the car or check its speed so as to prevent the result of a collision; and the court specifically instructs the jury that this ability on the part of the motorman and his failure to act constituted negligence. The real question in the case was, not whether the motorman could have stopped the car, but whether he was negligent in not doing so; and this was a question for the jury, and not for the court. Had the evidence shown without controversy that the motorman, in the exercise of care, could and should have anticipated the collision long enough beforehand to enable him to stop the car or check its speed so as to avoid the accident, then the instruction might have been correct. But the facts were in dispute. There were circumstances supporting either conclusion, and the question of negligence should have been left to the jury. It is no answer to this position to say that in the first part of the instruction the jury were told that they must consider whether or not the motorman was negligent in not stopping or checking the speed of the car. After this general statement, the court proceeded to enumerate a large number of circumstances indicating that the motorman was negligent, and then told the jury that if these circumstances were found to be established, and they believed from these and other circumstances proved on the trial that the motorman could have stopped the car, he was negligent. It was not the physicial ability of the motorman to stop or check the speed of the car that was in question, but his failure to use due care. The instructions as a whole are lengthy and intricate in their statements, and the one now specially under consideration is particularly obscure, and the bald statement at its conclusion that the motorman was negligent if he could have stopped or checked the speed of the car in time to avoid the accident, and failed to do so, may well have been seized upon by the jury as the solution of the whole difficulty. We reach the conclusion that in the two respects pointed out the instruction was erroneous and misleading.

2. Over the defendant's objection the court allowed the plaintiff to introduce in evidence a section of the city ordinances relating to the fire department as follows: Sec. 353. Fire Department Not to be Obstructed. Sec. 8. The engines, hose carriages, officers, men and apparatus of the fire department, shall have the right of way while going to and at any fire, and any person willfully obstructing the firemen in the performance of their duty shall be deemed guilty of a misdemeanor and be liable to punishment for such offense.” And the court refused on plaintiff's objection to allow the defendant to introduce a section of the city ordinance relating to the operation by defendant of its street cars as follows: Sec. 1304. Penalty. Sec. 8. The cars of said company shall be entitled to the track, and in all cases where any team or vehicle shall meet or be overtaken upon either of the street railways in said city, such team or vehicle shall give way to said car; nor shall any person willfully or maliciously obstruct, hinder, or interfere with any of said railway cars, by placing, driving, or stopping, or causing to be placed, or driven in a slow pace, or stopped, any team, vehicle or other obstacle in, upon, across, along, or near the tracks of said railway, or either of them, after being notified by the driver or conductor by the ringing of the car bell, or otherwise, and whoever shall willfully violate any of the provisions of this section shall, upon conviction thereof before the police judge of said city, be fined in any sum not less than $5 nor more than $50.” With reference to the section of the ordinances which was admitted in evidence, the court, after quoting it in an instruction, charged as follows: “You are instructed that, while the defendant had the right to operate its cars upon the streets of the city, it was bound to use ordinary care and caution in the operation thereof. And if you find from the evidence that the hose wagon in question was being driven upon said street in response to the alarm of fire, the driver of the hose wagon, the decedent riding upon such wagon, and the defendant are presumed to have been familiar with this ordinance; and in view of this ordinance the hose wagon was entitled to the right of way, and the conduct of the driver and the person riding upon the hose wagon, as well as the defendant, must be judged in the light of the conditions of this ordinance. And if you find that the defendant failed to use ordinary care and caution in stopping...

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7 cases
  • Kehm v. Dilts, 43481.
    • United States
    • Iowa Supreme Court
    • December 15, 1936
  • Parton v. Weilnau
    • United States
    • Ohio Supreme Court
    • April 29, 1959
    ...in the sense in which that term is used in the decisions on which counsel rely.' (Emphasis added.) In McBride v. Des Moines City Ry. Co., 134 Iowa 393, 109 N.W. 618, 622, it is said in the opinion by McClain, C. '* * * We are satisfied, however, that the facts do not afford the slightest oc......
  • State v. Flack
    • United States
    • Iowa Supreme Court
    • March 8, 1960
    ...249 Iowa 236, 246-247, 85 N.W.2d 261, 267 ('Specific provisions control general ones in a statute.'); McBride v. Des Moines City Railway Co., 134 Iowa 398, 405, 109 N.W. 618. IV. We are not called upon to speculate, apart from the language used, as to probable legislative intent in providin......
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    • Nebraska Supreme Court
    • April 3, 1915
    ...111, 45 N. Y. Supp. 124;Nesbit v. Town of Garner, 75 Iowa, 314, 39 N. W. 516, 1 L. R. A. 152, 9 Am. St. Rep. 486;McBride v. Des Moines City R. Co., 134 Iowa, 398, 109 N. W. 618. [2] Whether defendants were engaged in a joint enterprise was a question for the jury. Nesbit v. Garner, 75 Iowa,......
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