Ward v. Marshalltown Light, Power & Ry. Co.

• Citation: 108 N.W. 323,132 Iowa 578
• Parties: JOHN WARD v. MARSHALLTOWN LIGHT, POWER AND RAILWAY COMPANY, Appellant
• Decision Date: 11 July 1906
• Court: United States State Supreme Court of Iowa

108 N.W. 323

132 Iowa 578

JOHN WARD v. MARSHALLTOWN LIGHT, POWER AND RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

July 11, 1906

REHEARING DENIED SATURDAY, DECEMBER 15, 1906.

ACTION to recover damages for personal injuries resulting from being run into by defendant's electric railway car at a street crossing. Verdict for plaintiff for $ 67. Defendant appeals from the action of the court in overruling its motion for directed verdict at the close of the evidence, and from the court's further action in setting aside the verdict and granting a new trial on the motion of plaintiff.--Affirmed.

Appeal from Marshall District Court.--HON. G. W. BURNHAM, Judge.

Affirmed.

Chas E. Ransier and Binford, Snelling & Farber, for appellant.

F. E Northrup and Boardman, Aldrich & Lawrence, for appellee.

OPINION

MCCLAIN, C. J.

1. Assignment of error in the overruling of defendant's motion to direct a verdict in its favor is predicated on the claim that there is no evidence to show want of contributory negligence on the part of plaintiff. With respect to plaintiff's freedom from contributory negligence the evidence tended to show that, at the curb line, before attempting to cross the street, he saw the car which caused the injury approaching him at the distance of about a block and a half; that without further attention to the car he proceeded to cross the street, and when he reached the defendant's track, twelve feet from the curb line, he was struck by the car; that the car was running at a speed of thirty miles an hour, whereas, under the provisions of the city ordinance its speed should not have exceeded twelve miles per hour; and that the motorman gave no signal or warning until his car was so close to plaintiff that he was unable to avoid a collision. It requires no very elaborate mathematical calculation to show that, if plaintiff saw the car approaching a block and a half away when he was at the curb line, he could have crossed the track in safety before it reached him if it had been going at a rate of speed not exceeding that fixed in the ordinance, while, on the other hand, he was likely to be injured, as he was, if the car was going at twice that speed. Now, while it has been well said that one about to cross a street car track should take precaution for his own safety Beem v. Tama & T. Electric R. Co., 104 Iowa 563; Metz v. St. Paul City R Co., 88 Minn. 48 (92 N.W. 502), and should not rely upon nice calculation as to whether or not he can cross before a moving car, McGee v. Consolidated St. R. Co., 102 Mich. 107 (60 N.W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Terien v. St. Paul City R. Co., 70 Minn. 532 (73 N.W. 412); Watson v. Mound City St. R. Co., 133 Mo. 246 (34 S.W. 573), yet if under the circumstances as they appear to him he is justified in believing that he can cross the track in safety, and he is in fact injured by reason of the improper speed at which the car is operated, we can hardly say that his recovery should be defeated by the fact that if he had looked at the very instant he came into immediate proximity to the track he might have discovered his danger and avoided it. Under such circumstances we think the question of contributory negligence is properly left to the jury. Patterson v. Townsend, 91 Iowa 725, 59 N.W. 205; Hart v. Cedar Rapids & M. City R. Co. 109 Iowa 631. This case differs from that of Ames v. Waterloo & Cedar Falls R. Co., 120 Iowa 640, because in that case...