Sturm v. Tri-City Ry. Co.

• Decision Date: 06 July 1920
• Docket Number: No. 31845.,31845.
• Citation: Sturm v. Tri-City Ry. Co., 190 Iowa 387, 178 N.W. 525 (Iowa 1920)
• Parties: STURM v. TRI-CITY RY. CO.
• Court: Iowa Supreme Court

190 Iowa 387

178 N.W. 525

STURM

v.TRI-CITY RY. CO.

No. 31845.

Supreme Court of Iowa.

July 6, 1920.

Appeal from District Court, Scott County; A. P. Barker, Judge.

Verdict and judgment for personal injuries sustained by the appellee plaintiff. Defendant appeals. Reversed and remanded.Lane & Waterman and Cook & Balluff, all of Davenport, for appellant.

Ely & Bush, of Davenport, for appellee.

SALINGER, J.

I. In an amendment to abstract appellee makes the following statement:

“Denies that appellant's abstract is a complete and correct abstract of the pleadings, evidence, and reporter's transcript of evidence, etc., and makes the following corrections and additions thereto, but denies that said abstract as so amended contains the evidence as to the nature and extent of the injuries received by plaintiff at the time of the injuries in question and subsequent thereto, and denies that it contains the evidence relating to the extent or amount of damages suffered by plaintiff.”

This is followed by specific amendments both of elimination and of addition. Upon this state of the record appellee says in argument:

“Appellant cannot ask this court to consider whether the evidence was sufficient to submit to the jury the question of whether plaintiff was injured after the sled struck the car by reason of the motorman's negligence to stop the car because the specific denial of appellant's abstract precludes appellant from making such a claim now.”

That this may have been a correct position under former statutes and rules may be conceded. The question remains whether it is still a correct position. Under rule 32 (128 N. W. viii) the abstract is presumed to be the record unless there be a denial which “points out as specifically as the case will permit the defects alleged to exist in the abstract.” It provides further:

“Should the appellee deem the appellant's abstract incorrect or unfair he may prepare such additional abstract as he shall deem necessary to a full understanding of the questions presented to the court for decision.”

[1][2][3] We do not have the question of what is the proper practice on a chancery appeal, and express no opinion thereon. This is an appeal on the law side. On such appeal we hold that such a denial in general terms as was made here does not eliminate the evidence thus denied. As to some matters the appellee has amended by specifying in detail what should be stricken from the abstract and what should be added. This course should have been pursued consistently. In our opinion, the proper method of rebutting said presumption for the abstract is not by means of a statement that all the corrections that are made still leave the evidence on a certain subject inaccurate and imperfect, but to go on with the amendment and to add to the statement that the evidence is incorrectly abstracted a specification setting forth the true state of the record.

II. In the second instruction the court charged that the collision and injury will not alone sustain a recovery, because defendant was lawfully in the street with its tracks, and had the right to run its cars thereon; that, while this was so, the public also had the right to lawful use of the street, including the part of it occupied by said tracks, and that it follows that both must use the street with due regard to its proper use by the other; that defendant must use due care to avoid injury to those who might go upon its tracks; and that the public must use like care to avoid being injured by the running of the cars. The instruction continues that hence, before plaintiff can recover, he must show by a preponderance some want of care on part of defendant which constituted the direct and immediate cause of the injury suffered, and that he was free from negligence contributing to his injury, or else he must so prove that, even though he was guilty of contributory negligence, after said servants knew his position of danger they were then guilty of some act of negligence which was the proximate cause of his injury. The exception to this instruction is, in substance, repeated in the error points and the brief points, and the criticism of said instruction is this:

“It applies rules concerning persons lawfully upon the public streets to the present case, that plaintiff was not lawfully nor rightfully upon the street, but was using it unlawfully, and the street car company was under no duty to look out for such unlawful use of the streets, and that, while the rule of law stated in the instruction is correct, it does not apply to persons coasting in violation of the city ordinance.”

[4] The exception amounts to an offered instruction (see State v. Brooks, 181 Iowa, at page 877, 165 N. W. 194), and therefore the case stands as though the court had refused an offer to the effect that despite said general rules the rights of the plaintiff were affected by the fact that he was using the street for coasting in violation of a city ordinance.

The defense of the instruction as given is in the nature of an avoidance. Appellee says that when this instruction is read as a whole it is not erroneous, because: (1) It specifically directs the jury that, if plaintiff was negligent, he could not recover unless, after his position of danger became known to those in charge of the car, they were guilty of negligence which was the proximate cause of his injury; and (2) because the jury is expressly told in instruction 4 that the mayor had no authority to suspend the ordinance, and that plaintiff's act in coasting in violation of the ordinance was negligence. The argument concludesthat the instruction could not be misunderstood nor mislead the jury, and asserts it is not error for the court to state such general matters in its instructions as will aid the jury to a clear view of the entire subject-matter.

Now, it is true the jury was told: (1) That the defendant owed the plaintiff due care; (2) that the plaintiff must prove he did not contribute to his own injury; (3) that, though negligent, defendant had no right to injure plaintiff if it could avoid injury after becoming aware that he was in a position of danger; (4) that the act of coasting in violation of the ordinance was negligence; and (5) that the mayor had no authority to suspend such ordinance. But nowhere was it instructed that violating said ordinance had the slightest effect on the right of plaintiff to recover. The instruction given amounts to this: (1) The act of the plaintiff in coasting in the street constitutes negligence; (2) but, though such act constitutes negligence, yet the only thing for the jury to consider is whether plaintiff has shown by a preponderance some want of care on part of defendant which was the direct and immediate cause of plaintiff's injuries, and that he was free from any negligence contributing to that injury; or (3) has so shown that, even if plaintiff was negligent, defendant injured him through negligence after it knew that he was in a position of danger. There is not a word which presents the theory suggested by the exception. Nothing suggests that being in the street for a purpose prohibited by ordinance had any bearing either on whether the defendant was negligent, or on whether plaintiff was free from contributory negligence. The question is whether it was error not to qualify the correctly stated general rule by giving the proper effect to the admitted fact that plaintiff used the street as a coasting place in violation of ordinance.

[5] (a) We agree with plaintiff that a plaintiff is not necessarily guilty of contributory negligence because he is injured while violating some law, and that law violation does not constitute such negligence unless the breach of the law in some manner directly contributed to the injury suffered. See Beckler v. Merringer, 131 Iowa, 614, 109 N. W. 185;Young v. Railway, 100 Iowa, 359, 69 N. W. 682;Delaware v. Trautwein, 52 N. J. Law, 169, 19 Atl. 178, 7 L. R. A. 435, 19 Am. St. Rep. 442;Lockridge v. Railway, 161 Iowa, 87, 140 N. W. 834, Ann. Cas. 1916A, 158. And we held in Herdman v. Zwart, 167 Iowa, 500, 149 N. W. 631, that the negligence of defendant is not conclusively established by a mere showing that he passed the buggy of plaintiff on the side of the highway which under the law was the wrong side in meeting or passing another traveler. But does it follow from the fact that a violation of law may fail to constitute contributory negligence on part of plaintiff, or negligence on part of a defendant, that such violation is of no importance? Does it follow that the violation has no bearing on whether defendant was originally negligent? If it has, and it can be found there was no original negligence, contributory negligence becomes irrelevant. There is no occasion to consider contributory negligence where there is no negligence to contribute to. Papich v. Railway, 183 Iowa, at page 614, 167 N. W. 686. Concede, for the sake of argument, that this plaintiff did not by negligence contribute to his own injury. In the Papich Case, supra, we denied a trespasser, a child of tender years, a recovery, though we held that there was no contributory negligence in the case. We said:

“Since a child of tender years cannot be charged with contributory negligence, there is but one way to explain the very large number of cases, wherein such children have been held to be within the rule as to care due trespassers. Such cases must have proceeded on the theory that the question was not whether the injured child was negligent; but whether the injurer was; that the inquiry is not directed to whether the child contributed to negligence, but whether there was any negligence to contribute to.” 183 Iowa, 614, 167 N. W. 691.

Our final holding was that there should be no recovery, because “one who injures a trespasser when he does not know one exists is not guilty of negligence, since he is under no duty to anticipate that any one will commit a trespass.” 183 Iowa, 612, ...