Ramsey v. Cedar Rapids & M.C. Ry. Co.
| Decision Date | 03 July 1907 |
| Citation | 112 N.W. 798,135 Iowa 329 |
| Parties | ANNA L. RAMSEY, Appellee, v. CEDAR RAPIDS & MARION CITY RAILWAY COMPANY ET AL., Appellants |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--HON.W. G. THOMPSON, Judge.
ACTION at law to recover for a personal injury. From a verdict and judgment in favor of plaintiff, defendants appeal.
Reversed.
W. G Clark and W. E. Steele, for appellant.
Chas W. Bingham, for appellee.
The circumstances out of which grew the accident and injury of which complaint is made may be sufficiently stated for present purposes thus: On October 6, 1905, plaintiff entered a hack or carry-all, controlled and operated by A. B. Backus and Samuel Kennedy, for the purpose of being transported from one point to another in the city of Cedar Rapids. On the way the driver of the hack attempted to cross the street in a diagonal direction, and this necessitated crossing over the track of the defendant railway company. Before the hack cleared the track, it was struck by an approaching motor car, with the result that plaintiff's arm was caught between the framework of the hack and the car, and severely injured. The action was brought against both Backus and Kennedy and the railway company, and the petition declares "that said accident was caused solely by the joint and concurrent negligence of defendants and their employes." This declaration is followed by allegations of specific acts of negligence charged against each. Thus, as to the railway company, it is said that it was negligent in three particulars: "In permitting passengers to crowd into the front vestibule of said car, and to interfere with the motorman in running and in stopping said car; in neglecting to sound the gong or to give any warning while approaching said hack; in failing to stop said car before the collision" -- while as to the individual defendants, Backus and Kennedy, it is said that they were negligent, "in that they drove the hack upon and endeavored to cross the railway tracks when they knew or should have known that it was dangerous on account of the near approach of the car; that they did not whip up their horses and hurry across the track when they saw the car approaching; that they permitted too many persons to crowd into the hack and on the driver's seat outside." The defendants answered separately, each, in effect, denying generally. The trial resulted in a joint verdict and judgment, from which separate appeals were taken. The defendant, Backus and Kennedy, have not seen fit to prosecute their appeal, however, and we shall give no attention thereto.
I. The appellant company complains of the second instruction given by the court on its own motion. The instruction reads as follows: "If you are satisfied from the evidence that the injury complained of by plaintiff was caused by the negligent acts of defendants jointly committed, and you are satisfied from said evidence that defendants the railway company and the defendants Backus and Kennedy were also guilty of negligence, and that the joint and concurrent negligence of defendants caused a collision of the hack and the car, and which collision caused the injury complained of by plaintiff, . . . you will then be warranted in finding for plaintiff," etc.
That some of the grounds of complaint lodged against this instruction are well taken becomes apparent on barest reading. Especially is this true when it is considered that in no other instruction -- save what was said in the fourth instruction, presently to be considered -- was there any attempt made to advise the jury in what respects and to what degree the defendant company owed a duty to plaintiff, or, as to the consequences of a failure of duty on its part. Reduced to a few words, this seems to be the gist of the instruction If found that the defendants were jointly negligent, and were also separately negligent, and that the joint and concurrent negligence brought about the accident and injury, then plaintiff would be entitled to recover. Just what was meant by this is not readily discernible. And we shall not go very far in the way of an attempt at analysis. If the instruction is to be taken according...
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