Orr v. Cedar Rapids & M. C. Ry. Co.

• Decision Date: 06 April 1895
• Citation: 62 N.W. 851,94 Iowa 423
• Court: Iowa Supreme Court
• Parties: ORR v. CEDAR RAPIDS & M. C. RY. CO.

94 Iowa 423

62 N.W. 851

ORR

v.CEDAR RAPIDS & M. C. RY. CO.

Supreme Court of Iowa.

April 6, 1895.

Appeal from district court, Linn county; J. H. Preston, Judge.

Action at law to recover damages for personal injuries received by plaintiff in a collision with one of defendant's cars at a street crossing in the city of Cedar Rapids. The case was tried to a jury, verdict and judgment rendered for plaintiff, and defendant appeals. Affirmed.Charles A. Clark, for appellant.

Rickel & Crocker, for appellee.

DEEMER. J.

The defendant is a corporation owning and operating an electric street railway in the city of Cedar Rapids. One of its lines runs along Third street, from north to south; crossing, among other streets, Sixth avenue, which runs east and west. Between 7 and 8 o'clock in the morning of the 23d day of January, 1892, plaintiff, who was riding in an open, one-horse wagon, seated upon a high, spring seat, came down Sixth avenue, with his horse on a trot, going towards the west, in the direction of Third street. The morning was cold, and quite a frost was hanging to the trees and exposed places. The lots on the north side of Sixth avenue are well occupied with dwellings, and the east side of Third street, immediately north of Sixth avenue, is lined with a row of large trees. The view of Third street, north, coming west on Sixth avenue, is therefore very much obstructed; and except at but one place, which is but two or three feet wide, but little of Third street can be seen until the traveler has progressed far enough west on Sixth avenue to pass these obstructions to his vision. Plaintiff claims that, while in the exercise of due care on his part, he attempted to cross Third street, and, while in the act of so doing, his wagon was struck by a passing car on defendant's line of road, and he was hurled to the ground with great force, which resulted in serious and permanent injuries. He charges that the defendant was negligent in running the car at a great rate of speed, to wit, 30 miles per hour, and in failing to ring the bell or sound the gong, or give other signals of the approach of the car, and in failing to slow up the car as it came to the crossing. And he further avers that the defendant's employés saw plaintiff was upon the crossing long before the car struck his wagon, and that they did not apply the brakes, or make any attempt to stop the car, but carelessly and negligently ran the plaintiff down after discovering his position. The defendant denied each and all of these charges. The case was tried to a jury, and it returned a verdict for plaintiff, on which judgment was rendered, and defendant appeals.

Error is assigned upon the instructions given, the instructions refused, and rulings in the admission and rejection of testimony.

Complaint is made of the fourth instruction, defining “negligence,” because, while it is admitted the rule announced is good, as far as it goes, yet as it does not confine the acts done, or admitted to be done, to the circumstances of the case, it is erroneous. If this were the only instruction given by the court upon the subject, we would be inclined to agree with counsel, “for diligence is no fixed and unalterable standard of care. It is to be determined by the facts and circumstances of each particular case, and is as variable as the cases.” But in subsequent instructions--notably, the fifth--the jury were plainly and clearly directed to consider all the circumstances shown in evidence, in determining the question of the defendant's negligence. That all the instructions given should be taken and construed together is a rule too well established to require the citation of authorities. And if, when so construed, they announce correct rules of law, there will be no prejudice, even if one of them, taken alone, might be said to be incomplete, and therefore erroneous. There is no conflict in the instructions relating to this subject. They are related one to the other. One is simply explanatory of, and should be construed with, the other. There was no error, then, in the fourth instruction.

2. At the close of plaintiff's testimony, defendant moved for a verdict because the plaintiff had failed to show that he did not, by his own fault, contribute to the injury. There was a serious dispute in the testimony regarding the question as to whether the bell on the car was sounded before reaching the crossing, as to whether plaintifflooked and listened for the car before attempting to cross the line track, and also regarding the speed of the car. And we think, in view of all the testimony, it would have been error to have taken the case away from the jury on the grounds stated in the motion. We are not prepared to say that the degree of care required of one in attempting to cross a street-railway track is the same as that required in crossing steam railways. Indeed, we think that what would amount to negligence in the latter case, might not be so regarded in the former. In the former case the question is peculiarly one of fact, for the jury. Beach, Contrib. Neg. § 290; Thomp. Neg. 396, 397, and the authorities cited.

3. A witness was called who saw plaintiff as he was crossing the street, and she testified that when she saw him she thought he could not get across ahead of the car. This testimony as to her thought about the matter was stricken out on motion of plaintiff. While the ruling may have been erroneous, yet it was error without prejudice, for the witness had previously testified to the same matter without objection. Another witness was asked as to the ringing of the bell before the collision, and he testified it was rung. He then stated he supposed it rang more than once. His supposition was stricken out, and properly so. Another witness testified that, so far as he knew, the gong on the motor was not cracked. This was stricken out, and the court was right in so doing. If it was error, it was cured by the very next answer of the witness, in which he said that, so far as he knew, there was nothing the matter with the gong. Witness Elsom testified that the company contracted with the manufacturers of the cars for such as could run 20 miles an hour, and this was stricken out. The ruling was right. We see no errors whatever in the rulings on the testimony.

4. The court instructed the jury, in the seventh paragraph of its charge, as follows: “If, under all the evidence and the foregoing instructions, you find that the plaintiff was negligent, still the defendant cannot avoid liability if you find from the evidence that plaintiff, at the time in question, was in a perilous position, and that defendant's employé in charge of said car saw plaintiff, and knew the fact that he was in peril, or might have so known by the use of ordinary care, and thereafter failed to use ordinary care to stop said car and prevent injury to plaintiff; and if you further so find that, by the use of ordinary care, defendant's said employé in charge of said car, under such circumstances, could have avoided any injury which you so find plaintiff may have sustained, then the plaintiff will be entitled to recover,...