Wilkins v. Omaha & C. B. Ry. & Bridge Co.
Decision Date | 24 January 1896 |
Citation | 65 N.W. 987,96 Iowa 668 |
Court | Iowa Supreme Court |
Parties | WILKINS v. OMAHA & C. B. RAILWAY & BRIDGE CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Pottawattamie county; N. W. Macy, Judge.
Action at law to recover damages alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.Wright & Baldwin, for appellant.
Harl & McCabe, for appellee.
In October, 1892, the plaintiff was employed in delivering merchandise, and for that purpose used a horse and wagon. The defendant was engaged in the business of operating an electric street railway in the city of Council Bluffs, and one of its lines was on South First street. On a day in the month named, the plaintiff was driving northward on that street, between the street-car track and the curbing, when his wagon was struck by a car of the defendant, and broken, his horse was knocked down, and so hurt that he died in a short time, his harness was damaged, and he received serious personal injuries. He alleges that the collision was without fault on his part, and that it resulted from negligence on the part of the defendant in running the car down a steep grade at so high a rate of speed that it could not be checked within a reasonable distance, and in attempting to run it past the plaintiff, at a high rate of speed, at a point where the space between the track and the curbing on which the plaintiff was going was too narrow to make the attempt safe, without giving any warning by sounding the gong or other means. The defendant denies liability on its part, and avers that negligence of the plaintiff contributed to the injuries of which he complains. The verdict was for $2,500, and judgment was rendered for that amount and costs.
1. The appellant complains of the refusal of the court to give an instruction asked in words as follows: “(1) If you find, from the evidence, that when the plaintiff was first seen by the employés of the defendant in charge of the car in question, he was on, or partly on, the track, and that thereupon the bell was rung or the gong sounded, and thereafter the plaintiff left the track, and went to the side thereof, and that then the car was increased in motion, no complaint can be made of the conduct of the defendant in increasing the speed, as the employés in charge of the car would have the right to suppose that the plaintiff left the track because of the warning given, and they would have the right to increase the speed of the car.” This instruction was properly refused. If the plaintiff left the track, as stated in the instruction, he might not have done so in consequence of hearing the gong or bell, and his subsequent course may have shown to the employés in charge of the car that he was driving without regard to it. The motorman in charge of the car at the time of the accident testified, by deposition, that the plaintiff, just before it occurred, “did not altogether hug the curb line, but was a little out and in, driving along there,” and that he “did not drive very straight after he saw him, that he was in and out, toward the curbing, and then away from it.” The witness subsequently gave somewhat different testimony, but the jury were authorized to find that his first testimony was correct. The instruction ignored the fact that the employé in charge of the car may have known, or have had reason to believe, that the plaintiff was not aware of the approach of his car until too late to avoid the collision. The court charged the jury as follows: “If, however, when the plaintiff was first visible to the employés on the car, the motorman applied the brakes, and sounded the gong, and continued to do so until a short distance before the car overtook the plaintiff; and if, at such point, the plaintiff turned off or from the track, and was apparently going to one side to give the car an opportunity to pass; and if the motorman believed, and in the exercise of reasonable precaution and foresight had the right to believe, from all circumstances then before him, that plaintiff had heard the signal, and in answer thereto had turned to one side; and you further find that, thereupon, the motorman removed the brakes and increased the speed of the car; and you further find that the plaintiff then drew in toward the track, and that the employés were unable to stop the train and avoid...
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