Wilfin v. Des Moines City Ry. Co.

• Decision Date: 17 March 1916
• Docket Number: No. 30716.,30716.
• Parties: WILFIN v. DES MOINES CITY RY. CO., INC.
• Court: Iowa Supreme Court

176 Iowa 642

156 N.W. 842

WILFIN

v.DES MOINES CITY RY. CO., INC.

No. 30716.

Supreme Court of Iowa.

March 17, 1916.

Appeal from District Court, Polk County; Chas. A. Dudley, Judge.

Action for damages consequent of a collision with defendant's street car resulted in a directed verdict and judgment thereon. The plaintiff appeals. Affirmed.C. N. Pickler, of Des Moines, for appellant.

Parker, Parrish & Miller, of Des Moines, for appellee.

LADD, J.

The defendant maintains double tracks on Cottage Grove avenue, extending diagonally northwest from Nineteenth and Crocker streets. Twentieth street crosses this avenue irregularly, the part extending south of it being near a half block west of the portion extending north. The latter forms an acute angle and within it--that is, between Cottage Grove avenue extending northwest from the intersection and the portion of Twentieth street running north therefrom, is a fruit and confectionery store. The plaintiff, a boy of 16 years, was driving a horse and delivery wagon on a slow trot along Cottage Grove avenue at about 1 o'clock in the afternoon of September 1, 1913, from its intersection with Crocker street to the northwest until he had passed the store a short distance, when the tug on the south of the horse came loose. He testified:

“Just as quick as the tug came loose I raised my hand, and dropped it again, and tried to get off and fix the tug, and by the time I got started there the car hit me and knocked me off. The wagon was facing straight west. It was straddling the right rail. Q. How far did the horse run before he threw you out? A. Well, it didn't run. Just as the tug came loose, the car hit it, and then the horse went down there--I guess it was Twentieth street.”

His reason for driving on the track was that the pavement along the side was uneven and rough. On cross-examination he testified that he was looking ahead when the tug unfastened, and immediately looked toward the car and raised his hand; that he “then turned around and was going to get off and fix the tug, and by the time I got started to get off the car hit the wagon”; and that he “did not have time to get off his seat before the car came.” Two boys passing that way saw what occurred, and in the main corroborate plaintiff's story. All agree that as the tug fell the horse turned to the south, and that the car was 10 or 15 yards away. None noticed the motorman undertake to stop the car, but it did stop when about half way past the place of collision. The witness Merkle testified that the gong was ringing, and that the car was “running apparently about the rate they generally run in the traffic over the city along the street.” There was no other evidence as to the speed of the car, nor was there any evidence as to what distance a car moving at any particular speed may be stopped.

[1][2] Was this enough to carry the issue of defendant's negligence to the jury? The plaintiff had the right to the use of the entire street, including the tracks of defendant; but, as the street car could not leave its tracks to pass the vehicle he was driving, it was incumbent on him, upon notice of the approach of the car, to turn out and make way for the latter. But the defendant might not enforce his duty to be observed for its benefit by violence. It was not authorized to force the obstructing vehicle from the track. Neither it nor plaintiff had the right to assume that the other would keep out of the way at its or his peril, although the defendant might rightly demand that the horse and wagon should not unreasonably delay on the track.

[3] The motorman was bound under the law to keep a lookout for vehicles on the street. If he sees a vehicle on the track ahead, or in the exercise of ordinary care should have done so, it is his duty to bring his car under such control as to avoid a collision if the driver of the vehicle shall not leave the track. The rule is applicable to all vehicles, and, whenever overtaking another in its line of progress and a possible obstacle in the way, a proper regard for the rights of others requires that the car be reduced to such control that it may be immediately brought to a standstill if necessary. Consolidated Traction Co. v. Haight, 59 N. J. Law, 577, 37 Atl. 135;Camden, etc., Ry. Co. v. Preston, 59 N. J. Law, 264, 35 Atl. 1119;La Pontney v. Shedden Cartage Co., 116 Mich. 514, 74 N. W. 712;Vincent v. Norton & Taunton Traction Co., 180 Mass. 104, 61 N. E. 822;Robinson v. Louisville Ry. Co., 112 Fed. 484, 50 C. C. A. 357;Greene v. Louisville Ry. Co., 119 Ky. 862, 84 S. W. 1154, 7 Ann. Cas. 1126. The law is accurately stated in 27 Am. & Eng. Ency. of Law (2d Ed.) 70:

“While it is the duty of vehicles moving along street railway tracks to leave the tracks on the approach of cars, so as not to obstruct their passage, still those in charge of the cars must use reasonable diligence to prevent collisions, and the company is liable for injuries resulting from their failure to do so. Thus, where a vehicle is seen moving on the tracks ahead of a car, the motorman, gripman, or driver should bring his car under control, if possible, so as to avoid a collision if the driver of the vehicle fails to leave the track; but he is not required to bring the car to a stop unless the vehicle is sufficiently near to be reasonably considered in a position of danger. It has been held that, where a street...