McDivitt v. Des Moines City Ry. Co.

Decision Date23 November 1908
Citation118 N.W. 459,141 Iowa 689
PartiesM. A. MCDIVITT, Administrator, Appellant, v. DES MOINES CITY RAILWAY COMPANY, Appellee
CourtIowa Supreme Court


Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.

ACTION for damages for personal injuries to plaintiff's intestate, resulting in her death. Verdict and judgment for the defendant. Plaintiff appeals.


Parrish & Dowell, for appellant.

R. B Alberson and Carr, Hewitt, Parker & Wright, for appellee.



The accident in question occurred on July 15, 1905, on Ingersoll Avenue, in Des Moines. Ingersoll Avenue runs east and west at the point of the accident. The defendant owns the fee of the right of way on which it operates its street car line. On each side of this right of way is laid out a public street, forty feet in width. These two streets and defendant's right of way between constitute Ingersoll Avenue, for all practical purposes. A narrow street, known as "Crescent Drive," intersects this avenue practically at right angles. Near the west line of Crescent Drive and on the south line of its right of way, the defendant maintained a platform for the accommodation of passengers. This platform was partly upon the right of way and partly upon the street proper. The deceased lived a short distance to the northeast of this platform, and was in the daily habit of taking the east-bound car for the city every forenoon. There were two tracks upon the right of way; the north one being used for west-bound cars, and the south one being used for the east-bound cars. On the morning in question, the deceased started in the direction of the platform, traveling south and west. While she was traveling west on the street along the north side of the right of way, and before she reached a point opposite the platform, she was overtaken by a west-bound car, which passed her, obstructing for a few moments her view of the south track. Immediately behind such car, she crossed the north track and started to cross the south track, she was struck by the east-bound car, while crossing such track, and received injuries from which she afterwards died.

One witness fixed the point of the accident as five to ten feet east of the platform. Others fixed it at a greater distance. Before the view of the deceased was obstructed by the west-bound car, the east-bound car had come into view at some distance away. One witness, who was a passenger on the west-bound car, testified that when the deceased passed behind that car the east-bound car must have been from seventy-five to one hundred, and possibly one hundred and fifty feet away. The distance between the two car tracks was about five feet. There is evidence tending to show that the east-bound car was traveling at a rate of twenty-five miles an hour; whereas, the ordinance permitted no greater speed than twelve miles an hour. There was also evidence tending to show that the plaintiff was carried on the fender for some distance before the car was stopped, and that the car was started a second time after it had been once stopped, and after the deceased had been thrown from the fender, and that the deceased received her fatal injuries as the result of the second starting of the car. Plaintiff's petition averred negligence in twelve specifications consecutively numbered. Six of them charged negligence prior to the collision, consisting mainly of the alleged reckless speed and failure to have the car under control, and the other six charged negligence occurring after the collision, consisting mainly in the alleged failure of the motorman to stop the car as soon as he might have done, after discovering the peril of the deceased, and also in permitting the car to start after it had been stopped. The answer was a general denial and a plea of contributory negligence.

I. After hearing the evidence, it was the opinion of the trial court that the deceased was guilty of contributory negligence, and that she could not recover on that account, except for negligence occurring after she was struck, upon the theory of the "last clear chance," and he aimed to instruct the jury to that effect. Assuming, for the time being, that the court was right on the question of contributory negligence, the appellant complains of the instructions as given. It is complained, first, that the issues were not properly stated, in that the trial judge embodied in his statement of the issues a copy of the pleadings, and in that he included therein issues which were not to be submitted for their consideration. Under the heading "Statement of the Issues," which was the first statement read to the jury, and which preceded the numbered instructions, the court did state the issues by setting forth a substantial copy of the petition and answer. The practice of copying pleadings as a statement of issues has been often criticized and condemned by this court. Swanson v. Allen, 108 Iowa 419, 79 N.W. 132, and cases there cited. But where the issues are simple, and the pleadings are concise, it has been held not prejudicial for the court to state the issues in the language of the pleader. Little v. McGuire, 43 Iowa 447; Crawford v. Nolan, 72 Iowa 673, 34 N.W. 754. The petition in the case at bar was concise, and the language used therein might well be resorted to by the court, without prejudice to the plaintiff. The greatest difficulty appearing here is that the issues, as so stated, included the twelve specifications of negligence; whereas, the court was about to withdraw from the consideration of the jury six of those specifications. It is not, however, wholly unreasonable that the court should state to the jury what the issues were as made by the pleadings, as preliminary to a statement of what issues are withdrawn from their consideration and what issues are left for their consideration. This method may result in clearness to the mind of the jurors as to what things are eliminated, and what things remain. This is especially true if, in their opening statements to the jury, counsel have stated the issues as made by the pleadings, and if on the trial evidence has been received or offered in support or rebuttal of all such issues. It may often serve to clear away confusion in the mind of the jury therefore to set forth: (1) The issues made by the pleadings; (2) that part of those issues determined by the court; (3) the issues remaining for the consideration of the jury. We think therefore that in this case the plaintiff has no ground of complaint from the mere fact that the court followed the language of his petition in stating the issues to the jury. The failure of the court, however, to properly follow up this statement, will be considered later.

II. The appellant complains further that the instructions of the court were contradictory, and that, although the court held the deceased to have been guilty of contributory negligence, it nevertheless laid upon the plaintiff the burden of proving freedom from contributory negligence before she could recover even upon the theory of the "last clear chance."

After a statement of the issues, the court presented its instructions in paragraphs numbered from 1 to 19, inclusive. The first six are as follows:

(1) The burden of proof is upon plaintiff to establish by preponderance of the evidence each of the following propositions: First, that the deceased, Edith McDivitt Lawson, was struck and injured by the defendant's car about the time, at the place, and substantially in the manner alleged in plaintiff's petition; second, that said decedent was not guilty of negligence causing or contributing to her said injury; third, that the defendant was guilty of negligence substantially as alleged by plaintiff and hereafter in these instructions more fully specified; fourth, that said injuries so received by decedent were the direct and approximate result of the negligence of the defendant; fifth, that the estate of decedent has been damaged in some amount thereby. If you find affirmatively as to each and all of the above propositions, then your verdict will be for the plaintiff. If you fail to find affirmatively as to any one of the above propositions, your verdict will be for the defendant.

(2) As has been stated in the previous instruction, the burden of proof is upon the plaintiff, and before she can recover she must establish by a preponderance of the evidence that the defendant was guilty of one or more of the particular acts of negligence charged in the plaintiff's petition, and that such negligence was the proximate and direct cause of the injury which the plaintiff claims to have sustained on account of the injury and death of decedent. In determining whether the defendant was or was not guilty of the negligence complained of as alleged in plaintiff's petition, you will consider only the negligence alleged pertaining to the stopping or movement of the car in question, after decedent was seen by the motorman in a place of danger, and whether such negligence was the proximate cause of the injury resulting in the death of decedent.

(3) An accident may happen and an injury ensue thereby without any negligence on the part of any one connected therewith. If you find from the evidence that the injury and death of decedent was the result of mere accident or misadventure, and that the same occurred without any fault negligence, or failure on the part of the defendant company or its employees to exercise reasonable care and caution in the discharge of its duty in the operation of its car, then the plaintiff can not recover, and your...

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