Stoker v. Tri-City Ry. Co.

• Decision Date: 16 November 1917
• Docket Number: No. 31537.,31537.
• Citation: 182 Iowa 1090,165 N.W. 30
• Parties: STOKER v. TRI-CITY RY. CO.
• Court: Iowa Supreme Court

182 Iowa 1090

165 N.W. 30

STOKER

v.TRI-CITY RY. CO.

No. 31537.

Supreme Court of Iowa.

Nov. 16, 1917.

Appeal from District Court, Scott County; A. J. House, Judge.

Action for damages on account of injuries resulting from the collision of a motor truck with one of defendant's street cars. The court directed a verdict for the defendant. Plaintiff appeals. Reversed and remanded.Ely & Bush, of Davenport, for appellant.

Lane & Waterman and Cook & Balluff, all of Davenport, for appellee.

STEVENS, J.

The injuries of which plaintiff complains were received by him as the result of a collision between one of defendant's street cars and a motor truck at the intersection of Farnam and Laurel streets, in the city of Davenport. Farnam street in that city extends north and south, and Laurel street east and west, intersecting with, but not crossing, Farnam street.

On the occasion in question the driver of the auto truck and plaintiff, who were coemployés of the Bell-Jones Company, wholesale dealers in ice cream, were engaged in delivering tubs of ice cream to customers in various parts of the city. The truck was a large, heavy one, loaded with tubs containing cans filled with ice cream, with ice placed around the cans inside the tubs. The ice cream appears to have been covered with a tarpaulin. Plaintiff was the salesman of the Bell-Jones Company, and he informed the driver of the truck where the respective parties to whom cream was to be delivered were located, and perhaps to some extent gave directions as to the route to be followed in arriving at the various places where ice cream was to be left. Plaintiff claims to have had nothing to do with the operation or control of the truck; that his business was to sell and deliver the ice cream to the customers; that both the driver and plaintiff were employed by the Bell-Jones Company, the latter having nothing to do with the selection or employment of the driver or other control over him than as above stated.

It appears from the evidence that while traveling west on Laurel street approaching the intersection of Farnam street plaintiff saw the street car coming from the north some distance from the intersection. The evidence does not show whether the truck was proceeding on the north or south side of Laurel street, but it is claimed by plaintiff that there was not room to turn north from Laurel onto Farnam street without passing upon the track of defendant if the truck was on the north side of Laurel street at the time of making the turn. The curb at the southeast corner of the intersection was curved. The seat upon which the driver of the truck was sitting was elevated, and he was probably prevented, to some extent, from observing the approaching street car by overhanging branches of trees. The driver upon reaching the intersection probably partly turned the truck to the north, but plaintiff's testimony is not quite clear upon this point. From the time plaintiff saw the approaching street car until some time later he was engaged in covering the ice cream with the tarpaulin, and claims not to have further observed the movement of either the street car or the auto truck until immediately before, or about the instant, the driver jumped from the truck on the right-hand side and abandoned the same. At that time plaintiff was upon the seat of the truck. The record is not clear when he got upon the seat, or when he ceased working with the tarpaulin and saw the approach of the street car and realized there was danger of a collision, but plaintiff testified that immediately after the driver jumped from the truck he took hold of the steering wheel and turned it to the right for the purpose of throwing the hind wheel of the truck against the curb and preventing the accident. However, the front left wheel of the truck collided with the front steps of the street car, causing the load in the wagon to be shoved forward onto plaintiff, breaking some of his ribs and otherwise severely injuring him. Plaintiff testified that the motorman on the street car was looking to the west, and evidently did not observe the approach of the truck or know of its presence until the collision actually took place.

The court, upon motion of the defendant, directed a verdict in its favor. The grounds of defendant's motion were: (a) That the evidence failed to show that plaintiff exercised due care; (b) that the evidence showed he was negligent; and (c) that the driver of the truck was negligent, was the agent of plaintiff; that both were negligent in a common employment of which the plaintiff had chief charge, and the driver's negligence should be imputed to plaintiff. The motion was sustained by the court upon the second ground, and upon the further ground, not stated in the motion, that the defendant was not shown to have been negligent.

Four propositions are presented upon this appeal:

(1) Was there sufficient evidence offered of negligence upon the part of the defendant to require submission of that question to the jury?

(2) Did the evidence offered show negligence upon the part of the driver of the auto truck?

(3) If so, was such negligence imputed to the plaintiff?

(4) Was plaintiff guilty of negligence independent of the claimed negligence of the truck driver which contributed to his injury?

There was evidence offered from which the jury might have found that the street car was approaching the intersection at the rate of about 15 miles per hour; that the motorman in charge was not observing the intersection, but was looking in a direction opposite to that from which teams, motor vehicles, or pedestrians would come from Laurel street onto Farnam; that he continued to look to the west conversing with a passenger until the collision. The grounds of negligence alleged in plaintiff's petition, among others, were that the motorman was negligent in looking in the opposite direction and in failing to observe the approach of the truck and the peril in which plaintiff was placed by the attempt of the driver of the truck to turn from Laurel onto Farnam street.

It has been repeatedly held by this court that it is the duty of the motorman in charge of a street car upon approaching an intersection or crossing to keep a careful lookout ahead and to the right and left in order that he may observe the approach of teams, motor vehicles, or pedestrians in time to prevent collision and injury thereto. The rule as stated in Wilfin v. Des Moines C. R. Co., 176 Iowa, 642, 156 N. W. 842, is as follows:

“The motorman was bound, under the law, to keep a lookout for vehicles on the street. If he sees a vehicle on the track ahead, or in the exercise of ordinary care should have done so, it is his duty to bring the car under such control as to avoid a collision if the driver of the vehicle shall not leave the track. The rule is applicable to all vehicles, and, whenever overtaking another in its line of progress and a possible obstacle in the way, a proper regard for the rights of others requires that the car be reduced to such...