Mondt v. Iowa Ry. & Light Co.

• Decision Date: 18 December 1915
• Docket Number: 30338
• Citation: 155 N.W. 245,178 Iowa 666
• Parties: H. A. MONDT, Appellee, v. IOWA LIGHT & RAILWAY CO., Appellant
• Court: Iowa Supreme Court

155 N.W. 245

178 Iowa 666

H. A. MONDT, Appellee, v. IOWA LIGHT & RAILWAY CO., Appellant

No. 30338

Supreme Court of Iowa, Des Moines

December 18, 1915

REHEARING DENIED, FRIDAY, NOVEMBER 24, 1916.

Appeal from Boone District Court.--R. M. WRIGHT, Judge.

ACTION at law to recover damages. Verdict and judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.

Affirmed.

John A Hull, for appellant.

F. W Ganoe and D. G. Baker, for appellee.

WEAVER, J. EVANS, C. J., DEEMER and PRESTON, JJ., concur.

OPINION

WEAVER, J.

The defendant operates an electric railway extending between the city of Boone and the village of Logansport, and on the day in question one of its cars came into collision upon a public crossing with an automobile operated by the plaintiff, with resultant injury to the latter's vehicle. Plaintiff demands a recovery of damages, on the theory that the collision was occasioned by the negligence of defendant's employes operating the electric car, and without fault on his own part. A verdict was returned in his favor for $ 275, and judgment was entered thereon. The appellant has assigned numerous errors, but its argument is confined to three propositions, and to these only we give our attention.

I. The negligence is alleged to consist: (1) In operating the car over the crossing at an excessive and dangerous speed; (2) in failing to stop the car after discovering plaintiff's danger; (3) in failing to sound any signal or give warning of the car's approach; and (4) in failing to keep the car under reasonable control.

Appellant does not argue that the evidence is insufficient to justify a finding of negligence on its part, and, upon the record to which we shall hereinafter refer, it could not well make such claim. Its first proposition is that plaintiff is shown to have been guilty of contributory negligence as a matter of law, and this is in fact the one really debatable question in the case. Referring to the facts, the evidence tends to show that the collision occurred under conditions as follows: The crossing, though within the geographical limits of Boone, is outside of the settled area of the city, in the direction of the Des Moines River, and in or near a region of coal mines. The view as plaintiff approached the crossing was obstructed by a large billboard, by posts and poles, and by corn growing upon the adjacent land, and weeds covering the right of way up to a point close to the track. Plaintiff and the person riding with him both testify that they looked to see if any car was approaching; but, owing to the obstructions, they did not discover the car in time to prevent the collision. Plaintiff swears that the car, when he discovered it, was moving at not less than 30 miles an hour; and, although the power was shut off before it struck the automobile, the motorman did not succeed in stopping it until it had overrun the crossing 160 feet or more. The automobile was being driven at about 15 miles an hour, and as soon as plaintiff saw the car he released his clutch and applied both brakes; but the automobile slid up to the track, and stopped just before it was struck. He says no whistle or bell was sounded by the car. There is also evidence that, after the collision, the motorman, having stopped his car, came back to the crossing and, in reply to plaintiff's question why he did not ring the bell, said he did not see the automobile. The motorman, testifying for defendant, says:

"I first saw the automobile when the car was 18 feet west of the crossing. I also saw it when it was down by the Northwestern track, probably four or five blocks. I was then about 500 feet west of the crossing. It is higher there, quite a little grade. I rang a signal for that crossing 200 feet back, then at 40 feet from the crossing, and again right after I saw them. The conductor was standing on the right side of the front vestibule as we came toward the crossing. It is down grade there, and we always cut out the power and coast down. When we were about 500 feet from the crossing, the conductor said: 'There comes an automobile.' The power was cut off then, and after I got down to within about 200 feet of the crossing, I rang the gong and started to turn on the power again. And then when we got within probably 40 or 50 feet of the crossing, he was standing up and I was sitting down on the stool, and he says: 'I don't believe that automobile is going to stop.' So I cut out the power and started ringing the bell, but I couldn't see them on account of the corn, until they got up to within about 18 feet of the crossing. The signboard is right across our sight, and until I got beyond that point there I couldn't see across there at all, until I was about 18 feet of the crossing. I was ringing the bell and reversed the power then, but the rail was damp and the car skidded, and it is harder to stop the car when it is sliding than it is with brakes."

The conductor also testifies:

"I saw his automobile when it was, as I should judge, three or four hundred feet south of the crossing, and the street car was four or five hundred feet from the crossing. I made the assertion to Mr. Hardy, the motorman, that there came a 'go-devil,' and he started to ringing his bell shortly after that. I don't think he went a hundred feet till he started to ring his bell, and as he got a little closer, I said: 'I don't believe that fellow is going to stop.' And he started to ringing his bell again, and by that time they were both pretty close to the track, and Mr. Hardy reversed his car, and they came together. The automobile struck the street car. The car got to the beaten path first. Mondt's automobile was 3 or 4 feet from the car. Hardy rang...