Ames v. Waterloo & Cedar Falls Rapid Transit Co.

McClain, J. It may perhaps be assumed, from the hour of the day and the place and the street where the — 642 — accident occurred, that deceased had left his work at the noon hour, and was passing diagonally northwestward across Fourth street, which' runs in front of the railroad shops, where he was employed, to reach a street intersection on the other side on his way home. No witness actually testifies to having seen him until the very moment of the accident. It appears that five'or six covered wagons, i. person ax ííencT evi described as “movers’ wagons,” were folio wing one after the other southward on Fourth . street, close to the street railway track, and that deceased stepped from behind the last of these wagons towards the . track, and was struck by a car of defendant, coming from the south, just as he stepped upon, or was about to step upon the track to pass across it. Ileceased died the. next morning as the result of injuries received in the accident. The evidence tended to show that defendant’s car was being operated at a greater rate of speed than the maximum fixed by ordinance. There is no evidence that any care was exercised by deceased to avoid collision with the car, and it is contended that the trial court properly directed a verdict for defendant on the ground that it did not appear that at the time of the accident deceased was in the exercise of due care with reference to his own safety. Had there been no evidence whatever as to the circumstances surrounding the deceased at the time his injury 2 instinct of tion:Pp?e-erva’ sumption. was received, or as to how the accident occurred, the presumption would be entertained that, prompted by the instinct of self-preservation, the deceased was taking reasonable precautions for his own safety. But several witnesses saw deceased just as he stepped forward from behind the moving wagon and was struck by the car, and the fact that there was such evidence as to what occurred prevents the presumption which would otherwise be drawn from the instinct of self-preservation from being entertained. Bellv. Incorporated Town of Olarion, 118 Iowa, 126. — 643 — The question for us to determine, then, is simply whether, under the evidence, there is anything tending to show freedom from contributory negligence on the part of 3. contribu-geSe: sumption. deceased which made it necessary that that question should be submitted to the jury. It is -well settled that one who is struck by- a moving car while attempting to cross the track on which the car is moving, and who at the time is in full possession of his senses, and has an unobstructed view of the track, so that by looking and listening he might have avoided the approaching car, and is in no way distracted nor interfered with by surrounding circumstances or conditions either in seeing the car or avoiding it, is conclusively presumed to be guilty of contributory negligence. Beem v. Tama & T. Elec. R. L. Co., 104 Iowa, 563; Creamer v. West End Street R. Co., 156 Mass. 320 (31 N. E. Rep. 391, 16 L. E. A. 490, 32 Am. St. Rep. 456); Cawley v. La Crosse City R. Co., 101 Wis. 145 (77 N. W. Rep. 179); Smith v. City & Suburban R. Co., 29 Or. 539 (46 Pac. Rep. 136, 780); Everett v. Los Angeles Consolidated Electric Co., 115 Cal. 105 (43 Pac. Rep. 207, 46 Pac. Rep. 889, 34 L. R. A. 350). While a street car company does not have the ex-elusive 4. reasonable right of way on its tracks in- a city in the same sense that a steam railroad company has the exclusive use of its right of way at places other than a highway crossing, nevertheless a person attempting to cross a street car track is bound to know that cars are likely to pass on such track, and is bound to take reasonable care to avoid injury by their coming in contact with him. Bailey v. Market Street Cable Co., 110 Cal. 320 (42 Pac. Rep. 914); Smith v. Electric Traction Co., 187 Pa. 110 (40 Atl. Rep. 966). It is contended for the appellant, however, that in the present case deceased was not in a situation to see the approaching car, by reason of the obstruction to his view offered by the moving wagons, until he had gone into a — 644 — place of danger. But it is to be noticed that there was-nothing in the proximity of the wagons to distract his attention, or make it necessary for him to exercise a judgment in avoiding any danger other than that to be apprehended from an approaching street car. The wagons-were moving, and he was behind the last one. He was, as-it were, in a place of retreat, where he was perfectly safe from any danger to be apprehended, except such as might result from his going upon the street car track. Terien v. St. Paul City R. Co., 70 Minn; 582 (78 N. W. Rep. 412); Hickey v. St. Paul City R. Co., 60 Minn. 119 (61 N. W. Rep. 898). By looking or listening he could have discovered, before putting himself in danger, whether a car was-approaching, and we think there can be no question as to his duty to take such precaution for his own safety. Where a passenger, after alighting from a street car,, passed roupd the end of the car, and came into collision with a car on another track, it was held, that such person-was, as matter of law, chargeable with contributory negligence such as to defeat recovery. Smith v. City & Suburban R. Co., 29 Or. 589 (46 Pac. Rep. 136, 780). So, where-one approached a street car track back of a row of trees-extending along the track, which obstructed his view, it was held that, as matter of law, he was negligent in not-stopping to look or listen for a car when he passed the end of the row of trees and went upon the track. Kelly Wakefield & S. Str. R. Co., 175 Mass. 331 (56 N. E. Rep. 5 reasonable • stmited view' 285). In this last case it is conceded that it is-not in all cases essential to stop for the purpose of looking and listening when about to-go upon a street car track; but in that case, as in this, the-obstruction was so close to the track that there could not. have been an unobstructed view for any considerable distance between the time of passing the obstruction and eoming upon the track, and the court held that it was the-duty of plaintiff, “knowing that he could not see a car,. — 645 — which was behind the trees, and knowing that a car might have passed in behipd the tree.s before he looked, ” as he approached the track, to stop, if necessary, to discover whether-there was danger before going upon the track, and that he was negligent in not taking f‘any pains to see that such a car had gone by before he drove onto the crossing, or was so near to it that some accident was inevitable.” So here we are compelled to say that the deceased was conclusively guilty of negligence in that he went from behind the obstruction of the moving wagon into a place of danger without taking any precaution whatever to anticipate or avoid the danger incident to his own act. The duty of deceased was to “pay attention to his surroundings and employ his natural faculties and exert due diligence to avoid such danger.” Everett v. Los Angeles Consolidated Electric Ry. Co., 115 Cal. 105 (48 Pac. Rep. 207, 46 Pac. Rep. 889, 34 L. R. A. 350). Oounsel for appellant contend, however, that the presumption arising from the instinct of self-preservation is not to be limited to the very instant of going into danger, as to which we have seen by the cases already cited, it is expressly negatived and overcome, but that it may be presumed.that deceased, on leaving the curbing, about seventeen feet from the street car track, looked in the direction from which this car was coming, and, seeing it further south than the line of wagons, which must have extended at least one hundred and fifty feet along the track, calculated that, if the car was approaching at a lawful rate of speed, he'would have time to cross the track before the' car would reach him, and that the question whether this calculation on his part was reasonable should have gone to the jury. There are several objections to this line of reasoning. In the first place, there is not a scintilla of evidence that deceased looked before he left the curbing and saw the approaching car so far away that it would not reach him, if moving at a lawful rate of speed, until he — 646 — might reasonably expect to have crossed the track. There is no showing whatever as to what deceased' did or saw when he left the curbing. Certainly the presumption of the exercise of the instinct of self-preservation cannot constitute affirmative evidence of the existence of facts prior to and remote from the occurrence of the accident itself. It might as well be presumed, to justify deceased 6 instinct ™tíonFevi-er' dcnce' n0^ taking precautions at the time of the collision, that he had been advised by the manager of the street car company that no cars would be run on the track on' that day. If he had had such advice, he might perhaps be excused for not looking for a car, but certainly the presumption arising from the instinct of self-preservation would not constitute evidence that he had had any such advice. The origin in this state of the rule that the presumption of action dictated by the instinct of self-preservation is due to the peculiar doctrine announced by this court in early cases that the burden of showing affirmatively freedom from contributory negligence is on the plaintiff; and it was introduced in order to avoid the evident injustice of such a doctrine in cases where there was no evidence whatever one way or the other as to the exercise of care by the injured party, and no such evidence was attainable by reason of the death of the party injured and absence of any proof as to the circumstances attending the injury. Greenleaf v. Illinois Central R. Co., 29 Iowa, 14; Way v. Illinois Central R. Co., 40 Iowa, 341. Where there is direct evidence as to the circumstances of the accident, the presumption is not to be entertained. See Bell v. Incorporated Town of Clarion, supra, where the cases are fully collected.' It never has been held that the presumption from the instinct of self-preservation .constitutes afirma-' tive proof of any specific act, or the exercise of any specific care. The deceased in this case would not have been guilty of contributory negligence by reason of failure to — 647 — look wben be left tbe curbing. All that was necessary was that he should exercise care with reference to the crossing 7. reasonable be^xercised;0 presumption. street and going upon the street car track. Terien v. St. Paul City R. Co., 70 Minn. 532 (73 N. W. Rep. 412); Metz v. St. Paul City R. Co., (Minn.) 92 N. W. Rep. 502; McGee v. Consolidated Str. R. Co., 102 Mich. 107 (60 N. W. Rep. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Watkins v. Union Traction Co., 194 Pa. 564 (45 Atl. Rep. 321); Nugent v. Traction Co., 181 Pa. 160 (37 Atl. Rep. 206). Therefore it was not necessary, in order to negative contributory negligence, that plaintiff should specifically prove that deceased did look before leaving the curbing. There was direct evidence of contributory negligence at the instant of the accident, and this is not to be overcome by a pure presumption with reference to the exercise of care at some other time. As said in Baker v. Chicago R. I. & P. R. Co., 95 Iowa, 163, “All that can be assumed in this case is that [deceased] was doing what he was when” he was seen; that is, to paraphrase the language of that case, stepping from the street into a place of danger before a moving car, without taking any precautions as to his safety. In further analogy to this case, we can say that, if deceased did not see or hear the approaching car, it was because he was not attentive, and in that respect was negligent; and the facts in this case, as in that, clearly overcome any presumption to arise from the rule as to instinct of self-preservation. Counsel for appellant relies on a line of cases in which it is held that where a person about to cross a street car track is required to exercise judgment as to whether he can cross before an approaching car reaches him, the question whether he was justified, as a reasonable person, in making such attempt, is for the jury. Patterson v. Townsend, 91 Iowa, 725; Callahan v. Philadelphia Traction Co., 184 Pa. 425 (39 Atl. Rep. 222); McGovern v. Union Traction — 648 — Co., 192 Pa. 344 (43 Atl. Rep. 949); Lawler v. Hartford Sir. R. Co., 72 Conn. 74 (43 Atl. Rep. 545); Consolidated Traction Co. v. Glynn, 59 N. J. Law, 432 (37 Atl. Rep. 66); Watson v. Minneapolis Sir. R. Co., 53 Minn. 551 (55 N. W. Rep. 742). But even in cases of this character it is well settled that the person crossing the street has no right to make nice calculations and accept an imminent danger. Terien v. St. Paul City R. Co., 70 Minn. 532 (73 N. W. Rep. 412); Hickey v. St. Paul City R. Co., 60 Minn. 119 (61 N. W. Rep. 893); Watson v. Mound City Str. R. Co., 133 Mo. 246 (34 S. W. Rep. 573). The fundamental difficulty with the whole theory of counsel for appellant in this respect is that there is no evidence that deceased looked for any car, or saw any car. This is not a case, therefore, where it appears that some care was exercised, and it is for the jury to determine whether the amount of care was such as a reasonably prudent person would exercise under the circumstances, and the case is therefore distinguished from Hart v. Cedar Rapids & M. O. R. Co., 109 Iowa, 631, and Moore v. Chicago St. Paul & K. C. R., 102 Iowa, 595. There was neither presumption nor evidence that the deceased exercised any care whatever for his own safety, or that he was in such a situation that it was not practicable for him to exercise care, and the trial court properly directed a verdict for the defendant. —Affirmed.