Watson v. Des Moines Ry. Co.
| Citation | 217 Iowa 1194,251 N.W. 31 |
| Decision Date | 14 November 1933 |
| Docket Number | No. 41980.,41980. |
| Parties | WATSON v. DES MOINES RY. CO. |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Joseph E. Meyer, Judge.
An action for damages for personal injury and damage to property resulting from a collision between the automobile of plaintiff and a street car of the defendant. A trial resulted in a verdict and judgment for the plaintiff. Defendant appeals.
Affirmed.
Corwin R. Bennett, of Des Moines, for appellant.
Henry P. Daly and Putnam, Putnam, Langdon & Fillmore, all of Des Moines, for appellee.
Grand avenue is one of the principal streets and main thoroughfares of the city of Des Moines, Iowa, running east and west. Fifty-Ninth street intersects Grand avenue, and at such intersection the accident upon which this action arises occurred on September 26. 1931, at about 12:30 p. m. The defendant-appellant, Des Moines Railway Company, operates a line of street railway, a part of which runs on Fifty-Ninth street to its intersection with Grand avenue, and turns west on a private right of way on the east side of and adjoining Grand avenue, to Valley Junction, a town near Des Moines. At the time the accident here involved occurred, a car of the defendant was proceeding on Fifty-Ninth street on its way to Valley Junction. It came to a stop on Fifty-Ninth street before entering Grand avenue and discharged a passenger. It then started on its course and came into collision with the plaintiff's automobile at the center or west of the center of Grand avenue. The plaintiff-appellee was, just prior to the accident, proceeding west on Grand avenue in a Ford coupé having a rumble seat. There were two other persons besides the plaintiff, who was driving, in the front seat, and two persons in the rumble seat. The testimony discloses that the plaintiff was driving somewhere between 20 and 35 miles an hour. His own testimony is that he was driving around 25 miles an hour; and that he saw the street car when he was 300, feet from the intersection; that, when he was within about 100 feet of the tracks of the defendant company, he was driving about 25 miles an hour, and the street car was then barely moving, and it stopped soon after that before crossing Grand avenue. The street car then started up and defendant testified that he released his brakes about the time he got on the track, that he was about 5 feet from the track when the car started; that he swerved slightly to the left; and that he was going at that time about 15 miles an hour; that the street was dry, and that it was a clear day; that the street car proceeding on its way across Grand avenue collided with his Ford coupé, pushing it partly across the street, and it turned over, injuring the plaintiff and damaging the coupé.
The plaintiff charges negligence on the part of the defendant in three divisions of his petition:
(1) The defendant was operating the said street car in question in a careless and negligent manner.
(2) The defendant was negligent in failing to look in both directions before attempting to cross Grand avenue, and, had the defendant looked and exercised reasonable care, he could have seen the automobile of the plaintiff approaching, and could have, by the exercise of reasonable care, avoided the collision.
(3) The defendant was guilty of negligence in that it was not operating the street car at the time and place of the accident with due regard to the safety of others and in a careful and prudent manner.
And the plaintiff alleged that it was due to the said negligence of the defendant that the accident occurred, and that he himself was free from any negligence which contributed to the accident and resulting injury and damages.
The defendant answered denying that it was guilty of negligence, and denying that the plaintiff was free from contributory negligence, and upon the issues thus joined the case was tried, resulting in a verdict for the plaintiff of $5,000, which was later reduced by remittitur to $2,100. The defendant appeals.
The defendant assigns ten errors upon which it bases its rights to a reversal. It only argues three of them.
[1] The defendant's first contention is that the court erred in refusing to give an instruction requested by the defendant to the effect that the jury should not consider the failure of the defendant to ring a bell or give other warning to the plaintiff, as a ground of negligence, for the reason that there was no allegation in the petition under which such evidence could be considered by the jury. It is true that a refusal to give an appropriate requested instruction may be prejudicial error where the trial court fails to otherwise give the substance of such instruction. Botkin v. Cassady, 106 Iowa, 334, 76 N. W. 722,Langham v. C., R. I. & P. Co., 201 Iowa, 899, 208 N. W. 356. But in this case there was no specific claim in plaintiff's petition based upon the defendant's failure to ring a bell or give other warning signal, and the testimony in reference thereto was introduced in the record without objection on the part of the defendant, and most of such testimony was of an affirmative character and introduced by the defendant. The court did not submit the question to the jury, and all that the defendant complains about in this regard is that the court failed, upon proper request, to instruct the jury not to consider the evidence as to the ringing of a bell or give other warning signal, in determining as to whether or not the defendant was negligent. It must be understood at this juncture that the case was submitted to the jury by the court upon the allegations of negligence as contained in plaintiff's petition. And that plaintiff's petition was not attacked in any way either by a motion for more specific statement, a motion to strike, or a motion to withdraw any of the allegations of the petition, and, as we have said, much of the testimony of the plaintiff as to the failure of the defendant to ring a bell was introduced by the plaintiff without any objections on the part of defendant. There was no error in refusing to give the requested instruction.
[2][3] Defendant-appellant's next contention is that the court erred in submitting to...
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