Watson v. Boone Elec. Co.
| Decision Date | 13 December 1913 |
| Citation | 144 N.W. 350,163 Iowa 316 |
| Parties | JOHN T. WATSON, Appellee, v. BOONE ELECTRIC COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Boone District Court.--HON. C. G. LEE, Judge.
ACTION at law for the recovery of damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.
Affirmed.
John A Hull and Goodykoontz & Mahoney, for appellant.
Dyer & Dyer, for appellee.
OPINION
The defendant operates a street railway in the city of Boone. The plaintiff is a teamster, and at the time in question undertook to drive across the defendant's track, when his wagon was struck by a moving car, and the force of the collision was such that he was thrown from the vehicle, and injured. The defendant is charged with being negligent in the matter as follows: In operating the car at a negligent and excessive rate of speed; in failing to give any warning or signal of the approach of the car; in failing to keep any lookout to avoid danger of collision; in failing to provide any sufficient headlight; and in accelerating the speed of the car without any care to ascertain whether the track was clear. The defendant denies the alleged negligence, and contends that the collision was the result of plaintiff's own failure to exercise reasonable care.
Defendant's track is laid upon Eighth street, extending east and west. Plaintiff drove westward along the north side of the track to a point somewhere from twenty-five to fifty feet east of the intersection between Eighth and Runyon streets, where he turned to the left to cross over to the south side of the street. He had nearly cleared the track when a car moving eastward struck the rear wheel of his wagon, causing the injury complained of. Darkness had just fallen. Whether the street lights were on or were turned on just at the moment of collision is the subject of some uncertainty in the testimony. There is also a dispute upon the question whether the car which collided with the wagon was lighted as it approached the plaintiff; but it is conceded by defendant that the lights went out just before the actual collision took place. The track at this point slopes to the east at the rate of ten feet in two blocks, and the car was coasting in that direction. On the plaintiff's wagon was a platform of dump boards. He was sitting on the side of the wagon facing to the left. He testifies that as he turned to cross the track he looked ahead to the west, and discovered no car approaching, though he knew that one ordinarily passed that way at intervals of twenty minutes. He says he heard no gong or bell, and estimates the speed of the car at fifteen miles per hour. Another witness who was on the car estimates the speed at the same rate, and says the car ran past the point of collision some forty feet before it was stopped. The motorman says plaintiff was about thirty feet east of the car when he turned to cross the track, and claims that he at once made use of all his facilities for stopping the car, but could not do it in time to avoid hitting the wagon. He estimates his speed at the time when plaintiff turned at ten miles an hour, and at the time of the collision at three or four miles per hour. It also appears that the motorman's quick application of the reverse to his motor had the effect "to throw the current out," and for the time to "destroy the control of the car." There was evidence tending to show that under normal circumstances, with a "good rail and good car," a stop could be made within thirty to forty feet when going at the rate of twelve miles per hour.
I. Without further prolonging this statement of the record, we think it cannot be said there was no case for the jury upon the question of defendant's negligence. The testimony would have justified a finding that the car was being allowed to coast down a sharp grade through the darkness at a high rate of speed and along a street which the public had the right to travel, and was not being kept under such control that it might be stopped with reasonable quickness at the discovery of danger, and upon such record a verdict or finding of want of due care would have ample support.
II. Nor do we think that appellant's earnest contention that plaintiff was guilty of contributory negligence, as a matter of law, can be sustained. Plaintiff was rightfully upon the street, and could rightfully cross the railway track at any time or place within the public highway. True, he was bound to exercise reasonable care in so doing, and, if he drove upon the track with reckless indifference to injury from a car which he knew or ought to have known was dangerously near, then no action will lie in his favor. But he was not required to do more than the man of average or ordinary prudence may be expected to do under like circumstances. He was not required, as a matter of law, to stop his team, and look, and listen. He was required to make reasonable use of his senses, and if, as he turned upon the track, he looked to the west, and saw no car, or if he saw one, and it was so far away he could reasonably believe he had time to cross in safety before it would reach that point, he was not guilty of negligence, as a matter of law, in so doing. This is a question which depends upon inferences and deductions from all the numerous circumstances connected with the accident, and its answer comes clearly within the province of the jury. He says he looked, and could see to a distance of at least a block, and, discovering no car, assumed he could cross the track in safety. If this be true, his conclusion was not an unreasonable one. At least a jury might properly so find.
III. It is said that the court erred in permitting the jury to find negligence in the rate of speed at which the car was moving. It is true that courts have often said that the mere fact that a car or train moves at a high rate of speed is not in itself negligence. But it by no means follows that under the circumstances of a particular case excessive speed may not be negligent. Street railways occupy the streets of cities and...
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