Middleton v. Omaha & Council Bluffs Street Railway Co.
| Decision Date | 13 December 1929 |
| Docket Number | 40012 |
| Citation | 227 N.W. 915,209 Iowa 1278 |
| Parties | SAM MIDDLETON, Appellee, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 21, 1930.
Appeal from Council Bluffs Municipal Court.--J. L. BLANCHARD, Judge.
This is an action at law, to recover damages claimed to have been sustained by the plaintiff by reason of a collision which occurred between his automobile truck and one of the defendant's street cars. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals. The facts are set out in the opinion.
Reversed.
Tinley Mitchell, Ross & Mitchell, for appellant.
Robertson & Robertson, for appellee.
The petition, in substance, charges the defendant with negligence in operating the street car at a high and dangerous rate of speed, failure to give signals, failure to keep a proper lookout, failure to keep the car in proper control, and failure to stop the street car after seeing the plaintiff in a position of peril.
The record shows that, on the 4th day of September, 1928, while the plaintiff was driving his one-ton Ford automobile truck, there was a collision between it and one of the street cars of the defendant, as a result of which the truck was damaged, and the plaintiff suffered some personal injuries. The accident occurred at the intersection of Broadway and Tenth Streets in the city of Council Bluffs, Iowa. Broadway is a main street, running east and west, and Tenth Street intersects Broadway, running north and south. Both streets are paved. The defendant maintains a double line of tracks running east and west on Broadway. Street cars traveling east use the south track, and those traveling west use the north track. This double-track railway operates between Omaha, Nebraska, and Council Bluffs, Iowa. On the southeast corner of Tenth and Broadway is a two-story building, built out to the sidewalk line on the south side of Broadway. The intersection and the streets in the immediate vicinity of the intersection are substantially level. Appellee was about 50 years of age, and had operated an automobile for approximately 15 years, and had lived in Council Bluffs four years, prior to the date of the accident, and, according to his own testimony, was familiar with the intersection of Broadway and Tenth Streets. The collision occurred about 2 o'clock in the afternoon. There was no unusual condition, such as storm or fog. It was a clear day. Nothing out of the ordinary was taking place just before or at the time of the accident. The plaintiff drove north on the east side of Tenth Street, intending to turn west on Broadway and continue west on Broadway. According to plaintiff's own story, as he approached Broadway, he brought his truck to a complete stop at the south curb line of Broadway. He says his brakes were new, and in excellent condition. As he stopped, he looked west on Broadway, and observed two automobiles traveling east, approaching the intersection; he then looked east, and saw a street car approaching said intersection, about 75 or 80 or more feet away, traveling west on the north track. Appellee says: "The street car was traveling quite fast * * * a little faster than ordinary." After observing the approaching street car, the appellee started his truck in low gear, at a rate of speed enabling him, according to his own story, to stop the truck almost instantly. After the plaintiff started the truck forward, he continued to drive the truck slowly north on Broadway until his truck was on the south car track, and then started to run to the west on Broadway. After starting north across Broadway, although knowing, as he traveled from the south side of Broadway to the south track thereof, that the street car was approaching from the east on the north track, appellee did not look to see how near the street car was to him, but continued north, and started, and practically completed, the turn west. Shortly after the plaintiff thus made the turn to the west, the street car struck the right rear wheel of the truck, and a collision occurred. The truck was pushed along the rails, and afterwards overturned. The street car in question was of the large, or, as is commonly known, "interurban," type of car. There is a dispute in the evidence as to the speed at which the street car was being operated, immediately and for some time before the accident. There is also a dispute as to whether warning signals, such as the sounding of the gong, were given. The motorman testified:
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