Parker v. Des Moines City Ry. Co.

• Decision Date: 20 November 1911
• Parties: PARKER v. DES MOINES CITY RY. CO.
• Court: Iowa Supreme Court

153 Iowa 254

133 N.W. 373

PARKER

v.DES MOINES CITY RY. CO.^d1

Supreme Court of Iowa.

Nov. 20, 1911.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

Action at law to recover damages for injuries received by plaintiff in a collision between one of defendant's cars and a train being operated by the Chicago, Rock Island & Pacific Railway Company, at a place where the street railway tracks cross the tracks of the steam road, in the city of Des Moines. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Reversed.Guernsey, Parker & Miller, for appellant.

Thomas A. Cheshire, for appellee.

DEEMER, J.

The case as made for plaintiff in the petition is as follows: “That, on the 2d day of September, 1909, she entered one of the passenger cars of the defendant (car No. 169) which was being operated on the Ft. Des Moines Street Railway line. That the said line of the defendant company crosses the railway tracks of the Chicago, Rock Island & Pacific Railway Company at First and Vine streets, in the city of Des Moines, and that, when the car on which plaintiff was riding reached the intersection of the defendant's track and the tracks of the Chicago, Rock Island & Pacific Railway Company at First and Vine streets, it was struck by an engine and train of the said Chicago, Rock Island & Pacific Railway Company, bound east to the Iowa state fair grounds, in the eastern portion of the city of Des Moines. That the said car on which plaintiff was riding was in charge of a motorman by the name of Williams, and there was stationed there a flagman. That said motorman, as he approached the intersection of the street railway and the Rock Island tracks, did not see the approach of the engine and train on said Rock Island tracks, although said engine and train were in plain sight, and said Rock Island train had the right of way at the intersection of said tracks at said time. That the said motorman did not stop his car north of the intersection of said tracks until the engine and train of the Rock Island Railway had passed over said crossing, but caused his car to be moved forward over said intersection, with the knowledge or means of knowledge that the Rock Island engine and train had the right of way, and was moving eastward and about to cross said intersection. That the engine of the Rock Island train collided with the car of the defendant company on which plaintiff was a passenger with great force, and knocked the defendant's car from the track on which it was running from 15 to 20 feet immediately east of said crossing.”

And the grounds of negligence are thus summarized: “That the plaintiff further states that the defendant was negligent, as follows: First. In that its motorman failed to stop his car before it reached the intersection of the tracks of the Rock Island Railway Company. Second. That the defendant was negligent, in that its motorman failed to stop his car at a place north of the track of the Rock Island Railway Company where the passenger train of the latter company would not collide with the defendant's car. Third. That the defendant was negligent, in that its motorman undertook to pass in front of the Rock Island train, which had the right of way. Fourth. That the defendant was negligent, in that its motorman, with knowledge or means of knowledge of the approach of the Rock Island train, caused his car to be moved over the crossing where it would be struck by the Rock Island train.”

At the time of the accident complained of, the steam railway had in use a double track, extending from the passenger station of said railway company on Fourth street, in the city of Des Moines, to the fair grounds in said city. The defendant street railway company had a line of tracks in use, extending from Court avenue south and southwest to the army post, located south of the business section of the city of Des Moines, which said track, as it leaves Court avenue, runs along and upon First street for a number of blocks and intersects the Rock Island double track at Vine street, a distance of a block south of Court avenue. Said line of street railway also crosses the Des Moines Union tracks, the Chicago, Burlington & Quincy tracks, and possibly other tracks located south of Court avenue. The accident happened on September 2, 1909, about 5:30 p. m., at which time the state fair was being held in the city of Des Moines.

At the intersection of the defendant railway tracks with the Chicago, Rock Island & Pacific tracks, there was in operation, prior to the convening of the state fair, a derailer switch just north of the north track of the Rock Island, some 39 feet. The derailer lever, by means of which said switch was opened and closed, is located south of the south track of said Rock Island Railway Company at said track intersection. At the time the state fair convened, the defendant company spiked the derailer switch, so it could not be operated, and placed at the intersection of said tracks a flagman, whose duty it was to look out for approaching trains on the Rock Island tracks, and give signals to the motormen to stop or cross, as the occasion might warrant. Previous to this time, however, no switchman was located at such track intersection. The custom was for the motorman to approach the derailer switch and stop just north thereof. The conductor would get out of the car, cross the tracks, look for approaching trains, go to the derailer lever south of the tracks, close the switch, and, if the Rock Island tracks were free from approaching trains in near proximity, give a signal to the motorman to come ahead. During the state fair, however, the defendant company installed a switchman system, and the switchman was required to do the work which had been previously imposed upon the conductor and motorman.

The Chicago, Rock Island & Pacific Railway Company had also placed at said track intersection a flagman to warn, not only the motormen of street railway cars, but the traveling public who might be attempting to use the crossing.

On the day of the accident, the plaintiff took passage on car No. 169 at the corner of Fourth and Court avenue to go to her home at some point south of the Chicago, Rock Island & Pacific Railway tracks. The car was well filled with passengers. It is undisputed that as the motorman, Williams, approached the derailer switch north of the north track of the Chicago, Rock Island & Pacific Railway Company on First street he brought his car to a stop at the usual stopping place. There was located on the northwest corner of the intersection of First and Vine streets a three-story, brick building covering the entire quarter block. The Kratzer Carriage Company building was located on the southwest corner of said street intersection. Vine street, between First and Second streets, is built upon both sides with business buildings. Between Second and Third on Vine street were also buildings extending out to the street lines. The motorman, as he stopped at the derailer switch, could not see to the passenger depot of the Chicago, Rock Island & Pacific Railway Company located on Fourth street. The undisputed evidence is that, on account of the brick building on the northwest corner of the street intersection, and also a garage shanty or lean-to on the south side thereof, he had a view only of about 190 feet, or to the alley running north and south between First and Second streets. It is also shown that when he stopped he looked both east and west, and saw no trains or moving cars on the Rock Island tracks. As he stopped, the flagman, located at the track intersection, gave him a signal to come on. He at once released his brake, turned on the current, and moved southward at the rate of five or six miles per hour. As the front of his car reached the north rail of the north Rock Island track, the flagman, either the one placed there by the defendant or the Rock Island Company, began to signal to the motorman to stop his car. The motorman at that instant saw the approaching engine, applied his brakes, turned off the current, and did all that was possible to stop the car, but before he could stop the same it had entered upon the south track of the Rock Island Company, and the train coming from the west collided with his car, carrying it a distance of some 25 feet to the steel bridge of the Rock Island Company spanning the Des Moines river.

The motorman testified that he did not remember of having looked to the west for approaching trains after he stopped his car at the derailer switch and looked to the west and saw no train approaching. The undisputed evidence is that the train which collided with the defendant's car was proceeding from the passenger station at Fourth street to the fair grounds. There were six or seven cars attached to the engine, which was backing eastward. There was no one stationed on the tender of the engine to give signals of approaching danger. The train, as shown by the undisputed evidence, was running from 12 to 25 miles per hour as it approached First street. It started from Fourth street, a distance of three blocks, was continually gaining headway, throttle was open, and it was proceeding very rapidly until it passed the alleyway running north and south between First and Second streets. The city ordinance of the city of Des Moines at the time provided that no train on any steam railway tracks should be operated within the city limits at a greater rate of speed than six miles per hour. The undisputed evidence is that this train was exceeding the speed limit.

The case was submitted to the jury under instructions, some of which are challenged, and a verdict was returned for plaintiff in the sum of $5,500, upon which judgment was rendered in due course. Many errors are assigned, but the argument is confined to six main propositions. These will be considered in the same order as found in appellant's brief.

[1] 1. It is strenuously insisted that the verdict...