McCormick v. Ottumwa Ry. & Light Co.

• Citation: 124 N.W. 889,146 Iowa 119
• Parties: MCCORMICK v. OTTUMWA RY. & LIGHT CO.
• Decision Date: 17 February 1910
• Court: United States State Supreme Court of Iowa

146 Iowa 119

124 N.W. 889

MCCORMICK

v.OTTUMWA RY. & LIGHT CO.

Supreme Court of Iowa.

Feb. 17, 1910.

Appeal from District Court, Wapello County; M. A. Roberts, Judge.

Action at law to recover damages for injuries received by plaintiff in a collision with a street car owned and operated by defendant upon a street in the city of Ottumwa. At the conclusion of the testimony the trial court directed a jury which had been impaneled for the trial of the case to return a verdict for defendant, which was accordingly done, and plaintiff appeals. Affirmed.Steck, Dougherty & Steck, for appellant.

McNett & McNett, for appellee.

DEEMER, C. J.

While driving along what is known as North Court street in the city of Ottumwa in a single-seated buggy, with a single horse, the said buggy was struck by one of defendant's motor cars approaching plaintiff from the rear, throwing him to the ground, and producing the injuries of which he complains. As the exact negligence claimed is a material inquiry in the case, we quote the following from the petition: “Plaintiff avers that said injuries were caused entirely by and through the fault and negligence of defendant company, its authorized agents, and employés, in that at said time defendant's car was running at a high and dangerous and unlawful rate of speed, to wit, at the rate of 12 to 15 miles per hour, in violation of the ordinance of the said city of Ottumwa; that plaintiff, as well as the obstruction to plaintiff's continued passage on that side of the defendant's track on the said public street, was for blocks, in plain view of the motorman operating the said car, as also the fact that the top of plaintiff's buggy obscured the view of plaintiff to defendant's car coming on him from the rear, notwithstanding which the defendant's employés continued to run the car at the rate of speed aforesaid without seeing plaintiff, who was in plain view, and without having the car under control so as to avert the injury, as defendant was bound and required so to do and have, and failing to ring the gong or give to plaintiff any warning or notice whatever of the coming of said car, and, thus running and operating the said car, did carelessly and negligently without knowledge of plaintiff run on and against plaintiff and his buggy, wherefore and whereby plaintiff was injured as herein claimed.”

Plaintiff's version of the affair as given on the witness stand is substantially as follows: He is a farmer living some distance north of the city of Ottumwa. He came into the city on the morning of July 28, 1906, there being a circus in the town that day, and about 6:30 in the evening he started for his home. After getting his horse and vehicle he came onto what is known as North Court street, at its intersection with Washington. Reaching Court he turned and drove north on the east side thereof, passing its intersections with what is known as Marion, Lincoln avenue, and Ottumwa street, respectively, and was approaching the junction with Maple avenue when he was struck by defendant's car coming from the south. He testified that when he first came into Court street he looked both ways for a car, and saw none in either direction. He claims that as he approached Maple avenue he saw a car coming from the north and approaching him, and that he also noticed a wagon standing in front of a store on the southeast corner of Court street and Maple avenue, and, believing that there was not room for him to pass between this wagon and the oncoming car, he pulled across the street car track toward the west, and was struck by a car coming from the south. It appears that regularly there was but one car which ran along this street, and that the one which struck plaintiff's buggy was an extra put on to accommodate the circus-day crowd. There was also testimony from which a jury may have found that the north-bound car gave no alarm and sounded no gong or whistle, although the testimony on this proposition is in sharp conflict. There is also a conflict in the testimony as to the speed at which the car was being run. Taking that version most favorable to plaintiff, we must assume that it was going somewhat faster than six miles per hour just before it struck the plaintiff's rig. Giving to the testimony, as we must, its most favorable aspect for plaintiff, we are constrained to hold that there was enough evidence of defendant's negligence as charged to take the case to the jury.

2. It also appears from the testimony that plaintiff's eyesight and hearing are both defective, that he did not, after coming into Court street, look to the rear and south again until he was struck by the car, and that he traveled north from 900 to 1,000 feet after getting onto Court street. Had he looked back at or near the point where he was struck he could have seen a car for a distance of at least 900 feet. He was not struck at a street crossing but at a point between Ottumwa street and Maple avenue, and had he continued driving north on the east side of the street railway track he would have been in no danger from either car. The car going south was approaching a side track, which it took, or was to take, to allow the north-bound one to pass, and was running slowly toward the south when the collision occurred. The distance from Washington street, where plaintiff turned onto Court, to the intersection of Court with Maple avenue was approximately 1,000 feet. Plaintiff was perfectly familiar with the street, having traveled the same as he said 40 times a year, and had frequently passed street cars thereon. He knew of the switch, and according to the testimony must have driven north on Court street, and on the east side thereof, for nearly 900 feet before he drove upon the street car tracks, and was struck by the car. It is conceded that from the time he reached Court street until he was struck by the car he did not look back to see if a car was coming, nor did he listen or take any of the usual precautions before going upon the track. He saw the south-bound car approaching the siding, which to our minds is a material circumstance, and, without looking to the rear, suddenly drove upon the street car track and was struck by the north-bound car. We here quote from plaintiff's testimony the following: “Q. You say when you crossed Washington street you looked? A. I looked both ways. Q. And from that time until the accident happened did you look back? A. No, sir. Q. Did you look back at any time? A. No, not back. Q. Now, I want you to answer this question, did you, after you got onto Court street from Washington street, while you were going north, try or attempt to look back to ascertain whether there was any car coming from the south until a very few seconds before the accident? Answer that by ‘Yes' or ‘No.’ A. No.”

As heretofore stated there was, according to some of the testimony a wagon standing in front of a grocery store at the southeast corner of Court street and Maple avenue, and plaintiff claims that to pass around this wagon he pulled toward the street car track, intending to cross over and let the south-bound car pass him. He must have attempted to cross the track something like 100 feet south of the wagon, which he claims was so situated as to prevent his passing between the wagon and a street car should it come along while he was attempting to pass the wagon. The excuse offered by plaintiff for his failure to look back or listen before going upon the track is that he thought there was but one car upon the line, and because he saw the one approaching the switch, coming from the north, he inferred that this was the only car upon the line, and that there could not be another coming from the south. The testimony shows, however, that it was not unusual to run two cars on this line. The exact testimony upon this point is that whenever large crowds of people were moving, such as Sundays and circus days, two cars were run upon this line. The presence of the switch which the south-bound car was approaching was notice to plaintiff that there was or might be use for it, and as no other use could be suggested under the record than for the passing of cars, this fact is a most material circumstance to be considered in disposing of the case.

Plaintiff's account as to how the accident occurred we state as it appears in the record: “About 100 feet from where this wagon was I started to cross the track, as I could not go between the wagon and the car track. I started in an angling way for about 30 feet. * * * The street was paved. I was driving along about 6 feet from the track until I got within 30 feet of where I was struck, and started angling across the track. * * * I was about 6 feet from the rail before I commenced drawing in the 30 feet from the place of the accident. * * * After I crossed the track at Washington street I looked both ways; there was a turnout beyond Maple avenue. That's where the team was standing. Car going north passed the car going south there. After I got to Court street I observed a car coming south on Court street, after I got to the top of the hill. I was about halfway from top of the hill to the place of the accident when I saw the car. Traveled slow trot on Court street. * * * I saw a car coming south just north of the switch a little piece. The car had not stopped that I knew of it. The car was not stopped on the switch that I saw. The car was right on me before I saw it. It struck the left hind wheel of my buggy. * * * Did not look back for car after going on Court street. The buggy top was too high, and I was looking ahead at that car when I saw it. Q. Well, you say when you got onto the car track, at any rate the car was on you? A. Yes, sir. Q. I believe you said not over 15 or 20 feet from-- How many feet was the car from you when you got onto the track? A. Well, I do not know. Q. Well, you have said to the jury that it seemed to be right on you, how many feet would you say it was away from you, 10 or...