Stanley v. Cedar Rapids & Marion City Railway Company

• Citation: 93 N.W. 489,119 Iowa 526
• Parties: S. H. STANLEY, Appellee, v. CEDAR RAPIDS & MARION CITY RAILWAY COMPANY, Appellant
• Decision Date: 07 February 1903
• Court: Iowa Supreme Court

93 N.W. 489

119 Iowa 526

S. H. STANLEY, Appellee, v. CEDAR RAPIDS & MARION CITY RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 7, 1903

Appeal from Cedar Rapids Superior Court.--HON. J. H. ROTHROCK Judge.

ACTION to recover damages for personal injuries received by plaintiff in a collision with a street car upon a street in the city of Cedar Rapids. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

W. E Steele and Powell, Harman & Powell for appellant.

Rickel Crocker & Tourtellot for appellee.

OPINION

DEEMER, J.

While attempting to cross a street at the intersection of Third avenue and Second street west in the city of Cedar Rapids in a buggy in which he was riding, plaintiff was struck by a street car being operated on defendant's line of road, and received the injuries of which he complains. The grounds of negligence on which the case was submitted to the jury were: (1) Running the car at a high, unreasonable, and dangerous rate of speed, and (2) failure to ring the gong or to give other signals to warn plaintiff of the approach of the car in time to avoid the collision. Complaint is made of the court's refusal to give certain instructions asked, of certain of these given by the court on its own motion, and of the denial of defendant's motion for a new trial, based on the ground that plaintiff was guilty of contributory negligence. Of these in the order stated.

Instruction one asked by defendant reads as follows:

"(1) The basis of this action is the alleged negligence of the defendant in the operation of one of its cars in some of the particulars set out in plaintiff's petition, and in your deliberations you will confine yourself to a consideration of the particular acts of negligence set out in plaintiff's petition. Negligence, in law, is defined as doing that which a person of ordinary prudence would not do under similar circumstances, or failure to do that which a person of ordinary prudence would do under the same or similar circumstances.

"Before the plaintiff can recover in this action, he must show by a preponderance of the testimony two things: First that the defendant was guilty of some act of negligence as defined above, and as set forth in his petition, which caused the injuries complained of; and, second, that he himself did no negligent act which contributed to such injuries.

"By a preponderance of testimony is meant the greater weight or value of the testimony, and not necessarily the greater number of witnesses. In determining the question of preponderance of the testimony, you will be at liberty to consider the opportunity the several witnesses who have testified had to see and understand the things about which they testified, and interest or lack of interest in the event of this suit, and the actions and demeanor of the several witnesses while on the witness stand." Failure to give the last paragraph of the request is assigned as error.

In lieu thereof the court instructed, as follows: "(7) You are the judges of the facts. The burden of the proof is upon the plaintiff to establish the material allegations of his petition by a fair preponderance of the evidence. By a preponderance of the evidence is meant the greater weight of the evidence, which does not necessarily mean the greater number of witnesses. (8) You are the judges of the credibility of the witnesses. You have the right and it is your duty, not to consider such testimony as does not appear to you, as reasonable men, to be worthy of credence."

Taken as a whole, the instruction asked by defendant was erroneous, as applied to the facts of the case. There were four grounds of negligence stated in the petition, but two of which the court found were sustained by sufficient testimony to take them to the jury. Moreover, that part relating to the preponderance of the evidence was not strictly correct. As it reads, it would have no particular significance to a jury, for it merely gives it license to consider certain matters; whereas, if any instruction on the subject was demanded, it should have told them not only that they were at liberty to consider these things, but that it was their duty to do so. But, in any event, in view of the instructions given, there was no error in denying this request. The proposition involved related simply to matters to be considered in weighing evidence. These would occur to every sensible and reasonable man without any instruction, and courts may well assume that jurors are possessed of enough intelligence to understand these truths without having their attention specifically called to them. The giving of such instruction was largely discretionary with the trial court in any event, and no abuse of that discretion is shown. Taylor v. Railway Co., 76 Iowa 757; Doran v. Railway Co., 117 Iowa 442; State v. Viers, 82 Iowa 397, 48 N.W. 732; Upton v. Paxton, 72 Iowa 295, 33 N.W. 773; Bever v. Spangler, 93 Iowa 576, 61 N.W. 1072.

II. The second, third, and fourth instructions asked by defendant read as follows: "(2) If you find from the evidence that the plaintiff, before attempting to cross the street railway track at the time of the injury, could, by looking, have seen the car in time to have avoided the accident, but failed to look, or by listening could have heard the car in time to have avoided the accident, but failed to listen, and you further find from the evidence that the injury was the proximate result of his failure to either look or listen, then he was guilty of negligence contributory to his injury, and he cannot recover in this action. (3) The evidence shows without conflict that the plaintiff has frequently crossed the street railway at the place of the injury prior to the accident, and it further shows that he was thoroughly familiar with the location of such track, and knew that electric cars were operated at the crossing where the injury happened. Under such circumstances the plaintiff was required to exercise a higher degree of caution and watchfulness than if he had not possessed the knowledge above referred to. If you find that the motorman failed to sound a gong or ring the bell as he approached the place where the accident happened, that fact alone will not entitle plaintiff to recover in this action. The plaintiff, in approaching the street car track, was required to use the sense of sight as well as that of hearing; and, if he failed to exercise either the sense of sight or hearing, and he was injured in consequence of such failure, then such failure constituted contributory negligence, and he cannot recover in this action. (4) The motorman operating the car had the right to rely upon the presumption that the plaintiff approaching the railway crossing would exercise the caution of an ordinary prudent person, and that he would not enter upon the track without looking and listening to ascertain whether or not there was a car approaching; and if you find that as plaintiff approached the track with his horse he did not exercise that degree of caution and watchfulness which an ordinary prudent person would under similar circumstances, and the accident occurred as a result of plaintiff's failure to exercise ordinary care, then your verdict will be for the defendant." In lieu thereof the court gave the following: "(6) If you find from the evidence that the plaintiff's injuries, if any, were directly and proximately caused by the negligence, if any, of the defendant, as explained to you in the second and third instructions, then it is your duty to ascertain and determine whether the plaintiff was himself, at and previous to the time of receiving his injuries, if any, exercising such ordinary care as a man of reasonable caution and prudence would have exercised under like circumstances; and, if you find that his failure so to do directly contributed to his injuries, if any, then your verdict should be for the defendant; and upon the issue of the exercise of ordinary care by the plaintiff the burden of proof is upon him to establish the same to your satisfaction by a fair preponderance of the evidence."

The second instruction asked is wrong, in that it omits the feature of ordinary care. It required a verdict for defendant if plaintiff could, by the highest degree of care, or even, without reference to care, if he could by any possibility have seen the car in time to have avoided the accident. Ordinary care to discover the car by looking and listening is all that was required of him under the law. Haines v. Railroad Co., 41 Iowa 231; Moore v. Railroad Co., 102 Iowa 555. It will hardly be contended that plaintiff was required to use more than ordinary care to discover the car. He had the right to rely on the usual and ordinary signals being given by the defendant's employes in operating the car; and, while he was bound to use his senses of sight and hearing, he was not bound as a matter of law to know all that could have been discovered by the highest degree of prudence and caution.

The third was erroneous in that it required a higher degree of care and caution on plaintiff's part than the law exacts. The standard of care on the part of one injured by another is always the same, to wit, ordinary care and prudence. What might be such care under some circumstances might not, it is true, be the same as under others; but the standard is fixed and certain. Whether or not he used it in the particular case is ordinarily for the jury, and must, of necessity, depend upon circumstances. Orr v. Railway Co., 94 Iowa 423; Beem v. Light Co., 104 Iowa 563; Robbins v. Railway Co., 165 Mass. 30 (42 N.E. 334); Consolidated Co. v. Scott, 58 N.J.L. 682 (34 A. 1094 55 Am. St. Rep. 620, 33 L.R.A. 122, 58 N. J. Law, 701); Railway Co. v. Block, 55...