Moore v. Chi., St. P. & K. C. Ry. Co.

• Citation: 102 Iowa 595,71 N.W. 569
• Parties: MOORE v. CHICAGO, ST. P. & K. C. RY. CO.
• Decision Date: 29 May 1897
• Court: United States State Supreme Court of Iowa

102 Iowa 595

71 N.W. 569

MOORE

v.CHICAGO, ST. P. & K. C. RY. CO.

Supreme Court of Iowa.

May 29, 1897.

Appeal from district court, Polk county; C. P. Holmes, Judge.

Action to recover for personal injuries sustained by the plaintiff when driving across defendant's track at the crossing of east Eighth street, in the city of Des Moines, by reason of alleged negligence of the defendant's servant in the running and management of a locomotive engine. At the close of the testimony for the plaintiff, the defendant moved for a verdict, which motion was sustained, and verdict and judgment rendered accordingly. Plaintiff appeals. Reversed.St. John & Stevenson and Carr & Parker, for appellant.

Cummins & Wright, for appellee.

GIVEN, J.

This is the second appeal in this case. See 61 N. W. 992. The questions now presented were not considered on the former appeal. Defendant's motion for a verdict was upon the ground that the evidence shows conclusively that the plaintiff was guilty of negligence contributing to the injury complained of, in that he did not exercise ordinary care in approaching and going upon the defendant's track. Plaintiff contends that the evidence did not so show; that whether he was guilty of such negligence was a question for the jury; and that, therefore, the court erred in sustaining said motion and rendering said judgment. The rule in such cases is familiar and undisputed, and is well stated by defendant's counsel, as follows: “That where the conduct of the person charged with negligence is such that there may fairly be different opinions with respect to it, where one man may honestly say it was in accord with ordinary prudence, and another may honestly say it was not, the question is one for the jury, and not for the court. The court is authorized to decide the question only when it is beyond the province of fair dispute.” Guided by this rule, we are to say whether, under the evidence, the court erred in not submitting the question of plaintiff's negligence to the jury. In determining this, we must have in mind the care that the plaintiff was required to exercise, the circumstances under which he acted, and what he did, or omitted to do. It is conceded that he was bound to exercise ordinary care, that is the care that ordinarily careful, prudent persons would exercise under like circumstances. This rule is applicable to all such cases as this, and, in applying it, the courts have said that certain acts, when established, do, as a matter of law, constitute negligence. It has been often held that for one having control of the team he is driving to go upon a railway track, at a highway or street crossing, without looking and listening for trains, or, where there were obstructions to sight that rendered looking unavailable, without stopping to listen, was negligence. The law does not declare that a person about to go upon a railway crossing must look and listen, or stop and listen, at any particular time or place, but at the time and place that the exercise of ordinary care requires. These well-recognized rules are not questioned, and we need not refer to any of the many authorities cited in the arguments.

2. There is no question but that it was the duty of the plaintiff to look and listen for trains before going upon this crossing, nor is it disputed that the evidence shows that he did look and listen. The contention is that he did not look at the time and place when and where the exercise of ordinary care required that he should have looked and listened. In determining this contention, we must look to the acts of the plaintiff and the circumstances under which he acted. The circumstances were these: The accident happened in the daytime, at the center of the crossing of east Eighth street. The numbered streets referred to run north and south, and are numbered from west to east. Shaw street, also referred to, runs east and west, and the defendant's track runs diagonally across that part of the city, its general direction being northeast and southwest. The track crosses Shaw street west of Seventh, and Seventh, about 375 feet west of the Eighth street crossing. The center of the Eighth street crossing is about 180 feet north of the intersection of Shaw and Eighth streets. There were a dwelling house, outbuildings, and some trees on the west side of Eighth street north of Shaw, between Shaw street and the track that obstructed the view of the track to the west from Eighth street until within about 60 feet of the track. From this point the track could be seen as far west as Seventh street; and, as a traveler passed north, the...