Payne v. Waterloo, C.F. & N. Ry. Co.
| Decision Date | 12 December 1911 |
| Parties | J. C. PAYNE, Appellee, v. WATERLOO, CEDAR FALLS & NORTHERN RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Blackhawk District Court.--HON. C. E. RANSIER, Judge.
ACTION against a street railway company for personal injuries resulting from collision on the street. There was a verdict for the plaintiff. Defendant appeals.
Affirmed.
Mullan & Pickett and F. E. Farwell, for appellant.
J. T Sullivan and Edwards & Longley, for appellee.
At the close of the evidence, the trial court overruled defendant's motion for a directed verdict. We will give our first attention to the error assigned on such ruling.
The accident involved occurred about ten o'clock in the morning on February 11, 1909, on Fourth street, in the city of Waterloo. The plaintiff was riding in a cutter with one Dr. Dunkelberg, who was the owner and driver of the horse and cutter. In this part of the city Fourth street extends due north, and the plaintiff and Dunkelberg were driving north thereon. The defendant's street railway is laid along the center line of such street. Between the railway and the curb was a space of about seventeen feet. The plaintiff and Dunkelberg were driving on the east side of the track within such space. There was considerable testimony that the horse became frightened and swerved toward the track and into dangerous proximity thereto, and that Dunkelberg was unable to control him in time to avoid a collision. Under the evidence the horse and cutter were from thirty feet to seventy-five or eighty feet in front of the car when the horse "lunged" toward the track. The corner of the car caught the cutter, and pushed horse and cutter before it for a distance of from sixty to ninety feet before it stopped. Both the occupants of the cutter were thrown out to its right side, and the plaintiff was severely injured in one of his feet. The petition charged that the car was run at a high and dangerous rate of speed and that the defendant negligently failed to stop the car after discovering plaintiff's danger and his proximity to the track. The general ground urged in support of the motion to direct the verdict was, and is, that the evidence failed to show that the accident was caused by any negligence of the defendant and that the evidence did show conclusively that the fright of the horse was the independent proximate cause of the accident. We can not incorporate herein the details of the evidence. It was sufficient to permit the jury to find that the car was not being operated under proper control.
I. The street railway does not have the exclusive right to its part of the street, and it must necessarily exercise a constant lookout for a clear track. This means, also, that it must operate a running car under reasonable control. If it be true that the horse in its fright swerved upon the track so suddenly and so close to the approach of the car that the motorman could not, with reasonable diligence, have prevented the collision, then the defendant was not liable. But the evidence on this point was not so conclusive as to take the case from the domain of the jury. Granting that the accident would not have happened if the horse had not become frightened and shied toward the track, it does not follow necessarily that this became an independent cause of the accident.
If the defendant was in fact negligent, as charged in the petition, in the method of operating its car, then it was a question for the jury under proper instructions whether the fright of the horse and his swerving upon the track was an independent proximate cause, or whether it was merely a contributing cause of the collision. Railroad Co. v. Block, 55 N.J.L. 605, (27 A. 1067, 22 L. R. A. 374); Searles v. Railway Co., 70 N.J.L. 388, (57 A. 134); Newport News v. Nicolopoolos, 109 Va. 165, (63 S.E. 443); Olney v. Omaha Railway, 78 Neb. 767, (111 N.W. 784). The motion to direct was properly overruled.
II. Appellant complains because the trial court failed to number the paragraphs of its instructions as required by section 3708 of the Code. Concededly this provision of the statute ought to be obeyed. If the attention of the trial court had been directed to the omission, it would doubtless have been supplied. We think it devolved upon the appellant to point out the omission and take exception thereto in the trial court at or before the time the instructions were given. Having passed the matter at that time without objection, it is too late to complain now. In re Evans', 114 Iowa 240, 86 N.W. 283; Johnson v. Sioux County, 114 Iowa 137, 86 N.W. 212.
Appellant complains generally of the instructions, in that they were not fairly intelligible to the jury, and pleads his inability to specify the particular instructions complained of, because of the failure of the court to number the paragraphs as already stated. We have examined the instructions, and do not find them amenable to the criticism made upon them, except in the failure to number the paragraphs. One specific part of the instructions is embodied in the argument of appellant, and is challenged on the ground that it deals with questions outside of this record. Without setting forth the specific portions complained of, it is sufficient to say that it must be considered with its context, and that it was a proper explanation to the jury of the general nature of the duties imposed by law upon defendant and its employees. No other specific objection to the instructions is brought to our attention.
III. Complaint is made of certain remarks of the court made during the trial. It is said that they were in their nature extremely prejudicial. Two instances only are preserved in the record, and they were made in connection with rulings upon the testimony. It is perhaps true that each of them indicated a misapprehension on the part of the court as to the real state of the record. In that sense they might be misleading to the jury. They do not, however, impress us as being important or prejudicial to any degree. If they were, we would have to say, nevertheless, that appellant took no exception thereto, and that it is not in a position to be heard thereon now. Osborn v. Ratliff, 53 Iowa 748, 5 N.W. 746.
IV. The appellant challenged the juror Banfield for cause. The challenge was in these words: "Defendant challenges juror Banfield for cause." The challenge was overruled and exception taken thereto. The ground of challenge which is urged upon our attention is that one of the attorneys in the case was attorney for the juror in a proceeding pending in such court. This ground of challenge was made in the trial court only by inference to be drawn from the nature of the examination of the juror. We have held that a challenge to a juror for cause can not be made the basis of an exception to be heard on appeal, unless the challenge states the ground thereof. Bonney v. Cocke, 61 Iowa 303, 16 N.W. 139; Haggard v. Andrew, 107 Iowa 417. It is to be said, also, that the final examination of the juror by the court indicated that the relation of client and attorney between the juror and plaintiff's attorney had terminated. The court was warranted in finding such to be the fact, and in overruling the challenge on that ground.
V. Appellant presented the following special interrogatories, and asked that they be submitted to the jury:
(1) Did the horse, which was attached to the cutter in which plaintiff was riding, suddenly and just prior to the accident, shy toward the railway track of the defendant?
(2) Was the horse and cutter in which plaintiff was riding being driven in a place of safety by the witness Dunkelberg along Fourth street until the horse shied toward the railway track?
(3) Would the cutter in question have been struck by defendant's car except for the shying of the horse toward the railway track?
These interrogations were refused, and complaint is made of such refusal. We think that none of these questions called for an ultimate fact. We must assume that the appellant would ask the jury to answer the first two questions in the affirmative, and the third in the negative. Such finding would not determine any element of the plaintiff's case or of the defendant's defense. The "shying of the horse" was one of the circumstances of the case. It was practically undisputed. It was contended for by the defendant in evidence and pleaded by the plaintiff in his petition. The crucial question in the case was whether his proximity to the track was observable to the motorman for a sufficient time before the collision to have enabled him in the exercise of ordinary care to have avoided the accident. These interrogatories do not fairly touch that question. We think the trial court was justified in refusing them.
VI. Complaint is made of many of the rulings of the trial court upon the admission of testimony. We can not deal specifically with all of them without extending this opinion unduly. The plaintiff testified that just before the collision he looked over his shoulder, and saw the car coming. The following question was put to him by his own counsel: Proper objection was made both to the question and to the answer as incompetent and self-serving declaration, and the point is now urged upon us. The manifest purpose of the question was to show that the plaintiff used care to warn the driver of the vehicle of impending danger as soon as he discovered it. ...
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