Towberman v. Des Moines City Railway Co.

• Decision Date: 18 January 1927
• Docket Number: 37466
• Citation: 211 N.W. 854,202 Iowa 1299
• Parties: WILLIAM TOWBERMAN, Appellee, v. DES MOINES CITY RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

211 N.W. 854

202 Iowa 1299

WILLIAM TOWBERMAN, Appellee, v. DES MOINES CITY RAILWAY COMPANY, Appellant

No. 37466

Supreme Court of Iowa, Des Moines

January 18, 1927

Appeal from Des Moines Municipal Court.--H. H. SAWYER, Judge.

An action for damages resulting from a collision between the automobile of plaintiff and one of the street cars of defendant company. From a verdict in favor of plaintiff and from judgment entered thereon, defendant appeals.

Reversed.

Corwin R. Bennett, for appellant.

C. C Putnam and Guy S. Calkins, for appellee.

ALBERT J. EVANS, C. J., and DE GRAFF and MORLING, JJ., concur.

OPINION

ALBERT, J.

Plaintiff 's automobile was being driven along East Walnut Street in the city of Des Moines in an easterly direction by the wife of plaintiff. She claims that she stopped her car by reason of a traffic jam ahead of her, and-that, while her car was in this position, a street car of defendant's, coming from the rear, collided with the automobile, and hence the damages claimed. In one of the instructions given by the court, the jury were told that the burden of proof rested on plaintiff to prove by a preponderance of the evidence the materiality of this petition, which materiality was then set out, and among other things the following:

"That the plaintiff's wife was not in any wise guilty of contributory negligence in driving the plaintiff's automobile, which negligence was the proximate cause of the accident, as hereinafter instructed."

After setting out the other alleged grounds of negligence, the jury were told that, if they found from the evidence that plaintiff had established each of the foregoing propositions by a preponderance of the evidence, then plaintiff would be entitled to recover from the defendant such damages, etc. In the next instruction they were told:

"It is the law of this state that one cannot recover damages for an accident the proximate cause of which was the negligence of the party seeking to recover."

It will be noted from these two excerpts from the instructions that the jury were told that the contributory negligence necessary to bar recovery must be the proximate cause of the injury. In these instructions the term "proximate cause" was omitted, as applied to defendant's negligence, but was made to apply to the question of contributory negligence. We have many times stated the rule as to contributory negligence. It is well stated in Banning v. Chicago, R. I. & P. R. Co., 89 Iowa 74, at page 81, 56 N.W. 277, where we said:

"If the injured party contributed in any way or in any degree directly to the injury, there can be no recovery."

This is a simple and exact statement of the rule that has been followed in this state. The appellee seeks to justify this instruction by reason of the cases of Rietveld v. Wabash R. Co., 129 Iowa 249, 105 N.W. 515; Bird v. Hart-Parr Co., 165 Iowa 542, 146 N.W. 74; and Johnson v. Tillson, 36 Iowa 89. If we take these cases in the inverse order, the Johnson case is a case in which the plaintiff lost two horses, which were stung by bees owned and kept by defendant. The court instructed the jury that the defendant was liable for his negligence in this action, should the jury find negligence on his part, unless they found that the plaintiff "was equally guilty of negligence with defendant." The instruction was held erroneous, and it is there said:

"We recognize the doctrine of contributory negligence, and hold that recovery for injuries cannot be had if the negligence of the injured party contributed to the misfortune, which, but for his negligence or want of caution, would not have happened. "

In the Rietveld case, which was an action against the railway company for the death of plaintiff's intestate, among other instructions was the following:

"* * * in this case, if you find from the evidence that the deceased's carelessness or negligence was the proximate cause of the accident causing the injury, then the plaintiff cannot recover on the ground of negligence alleged."

In the same instruction the court then defines "proximate cause." It is there said:

"This was erroneous in the form in which it was given, in that it virtually announced the rule of comparative negligence, which does not prevail in this state. Of course, the plaintiff's negligence must be such as contributes proximately to his injury; but if it does so in whole or in part, in any manner or to any degree, there can be no recovery on his behalf."

In the Bird case, the action was for personal injury of an employee of the defendant's. In discussing an instruction given in that case it is said:

"The true rule is that plaintiff's negligence, if there be any, will not defeat him unless it be such as contributes proximately to the injury; but it need not be the sole cause of his injury. If it contributed to produce the same, and if it was one of the efficient causes thereof, the plaintiff cannot recover, because, in the absence of statute, neither court nor jury is presumed to apportion the damages which arise from negligence, or to say which one was the more to blame [citing authorities]. But plaintiff's negligence must have been one of the causes contributing proximately to the result."

Appellee also cites 1 Thompson's Commentaries on Law of Negligence, Section 169, where it is said:

"Contributory negligence, in a sound juridical sense, is the negligence of the plaintiff, * * * amounting to a want of ordinary care, and proximately contributing to bringing about the injury."

It is further said that a proximate connection between this want of ordinary care and the injury complained of constitutes such negligence as will bar recovery.

These authorities fail to support the contention of appellee. The only case in which there is an instruction parallel to the one given herein was the Rietveld case, supra, where the jury were told that the carelessness and negligence of the deceased were the proximate cause of the accident; and for the use of this term "proximate cause" in this kind of an instruction, we reversed. The court failed to...