Remillard v. Sioux City Traction Co.
| Decision Date | 09 April 1908 |
| Citation | 138 Iowa 565,115 N.W. 900 |
| Parties | REMILLARD v. SIOUX CITY TRACTION CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; David Mould, Judge.
Action for damages resulting to the estate of plaintiff's decedent from his alleged wrongful death. From judgment against it, the defendant appeals. Affirmed.Jos. S. Lawrence, for appellant.
A. Van Wagenen, for appellee.
Joseph Remillard and his wife had come from Jefferson, S. D., to Sioux City, with two loads of wheat January 10, 1905, and, as the mills had closed for the day, drove their teams to the residence of one Bellowsat the corner of Second and Main streets. Failing to find a stable, one team was blanketed, and shortly after 8 o'clock in the evening Remillard started for the business portion of the city about 10 blocks distant to procure a pair of blankets for the other team. The defendant's line of railway running through Riverside Park to the business center of the city crosses Main street near Bellow's residence, and then extends eastward over Sious, Market, Bluff streets, in the order named. Between these streets the line passes through the blocks diagonally over a private way of the company. Parallel with the track, and about 12 feet south of it, is the track of the Chicago, Milwaukee & St. Paul Railway Company. Bellows saw deceased start towards the defendant's line, and, as he did not return as expected, went after him at about 11 o'clock, when, upon inquiry, found his body at the morgue. He had been struck by a car of the defendant company at about 8:30 o'clock either when on Market street, as the jury found in answer to a special interrogatory, or at a point about 90 feet east of Market street. The court submitted to the jury whether the defendant was negligent (1) in running its car at an excessive rate of speed; and (2) in not stopping it after deceased's danger was known or should have been known in time to avoid the injury. Appellant challenges the sufficiency of the evidence to sustain the verdict on either of these grounds, or to sustain the finding that the deceased was not at fault in getting in the way of the car. It will be observed that the deceased was going toward the business center of the city, as was the defendant's car. At the same time a freight train was moving in the same direction on the track of the Chicago, Milwaukee & St. Paul Railway Company. The evidence on the part of the plaintiff tended to show that this train was moving at about eight miles per hour, and that the car of defendant was moving at about twice that speed; that, when the car reached Market street, the train had passed that point, save two or three freight cars and the caboose; while that in behalf of the defendant tended to show that the freight train was moving at the rate of about six miles per hour and the street car at about half that speed. There was what the witnesses designated as a shoulder off the Chicago, Milwaukee & St. Paul Railway Company's track about five or six feet from the rail where a person could walk even between passing trains, though one not accustomed to be around cars would not be likely to do so, but move farther away from the passing train. The motion of the train, together with the accompanying noise, was likely to divert a pedestrian's attention, and, in view of this, it cannot be said as a matter of law that deceased was negligent in not observing the approach of the street car. See Perjue v. Citizens' Light & Gas Co., 131 Iowa, 710, 109 N. W. 280. Moreover, if the collision occurred at the crossing, there was no direct evidence thereof and the instinct of self-preservation furnished sufficient basis for a finding of want of contributory negligence. Bell v. Inc. Town of Clarion, 113 Iowa, 126, 84 N. W. 962. The evidence was sufficient to carry the issue as whether the deceased was at fault to the jury.
2. There was a full moon and some clouds through which it shown, but the motorman testified that with the aid of the headlight he could have seen a person on the track a block and a half away. From Main street to the business center of the city was thickly settled, so that, in the exercise of ordinary care, it was the duty of the motorman to anticipate and keep a lookout for pedestrians traveling on the intersecting streets; and, as he could have seen had he looked and it was his duty to keep a lookout, and he testified that he did not see anyone there, the jury might have found that the defendant was negligent in not discovering deceased at the crossing and in running him down, if the collision occurred in Market street. Doran v. St. Ry. Co., 117 Iowa, 442, 90 N. W. 815;Barry v. St. Ry. Co., 119 Iowa, 62, 93 N. W. 68, 95 N. W. 229;Doherty v. St. Ry. Co. (Iowa) 114 N. W. 183. Appellant insists, however, that the evidence was insufficient to sustain the finding that the collision occurred on Market street. As already noted, the motorman testified that no one was at that street when the car passed, and plaintiff necessarily relies on evidence of tracings on the frozen grounds and another circumstance to prove otherwise. Early the following morning two brothers of plaintiff, her attorney, and the father of the deceased looked over the scene of the accident, and...
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