Kern v. Des Moines City Railway Co.

Deemer, J. — 1. Appeal direction of verdict: review. As there was a directed verdict for defendant at the close of plaintiffs testimony, we must take that view of the case most favorable to plaintiff which the evidence tends to disclose, without, of course, indicating that this is the one which should obtain upon trial by jury. All rea-' sonable and legitimate inferences which the testimony will bear must be resolved in favor of the plaintiff; and, if oh the whole case reasonable minds might differ regarding the weight of the testimony or the inferences to be drawn therefrom, the conclusions are for a jury, unless, giving to the testimony its most favorable aspect, no other conclusion may fairly be drawn save the one arrived at by the trial court. We may say at the outset that we are favored with a copy of the opinion of the trial court, announced when passing on the motion to direct, from which it appears that the motion was sustained on the ground that plaintiff’s intestate had not shown himself free from contributory negligence. This much for the reason that with this thought in mind the case may be better understood as we proceed. V. D. Kern was an insurance agent, living at 1334 East Walnut Street in the city of Des Moines. He was at the time of his death 32 years of age, and had a wife and. children dependent upon him. He had been troubled with rheumatism, ,but it is claimed had recovered before the accident in question. Grand Avenue in the city of Des Moines is one of the principal streets in that city, running from its western limits eastward past the State Capitol to the State Eair Grounds. Eor a part of the way on the east side of the Des Moines Kiver the defendant, an electric street railway company, occupied this street with its tracks — the tracks being double from Twelfth to Four [623] teenth Streets on that side of the river. At the crossing of Grand Avenue with East Thirteenth Street the rails of these tracks are four feet and. eight inches apart, and the south rail of the north track is four feet and four inches distant from the north rail of the south track. It was Kern’s custom to take defendant’s street' ear in going tó and returning from his home, ’ and he almost universally took the car at the junction’ of Thirteenth Street with Grand Avenue. It was the habit and custom of the street car company to stop' its cars for the ingress and egress of passengers at the far side of the crossing; that is to say, it passed over the street intersections with its cars before stopping to receive or discharge passengers. There is an ordinance of the city forbidding a greater speed of street cars than eight miles per hour in the business district and than twelve miles per hour in the residential section. The junction of Thirteenth Street and Grand Avenue and all other places in the immediate vicinity are in residential sections. The annual state fair was in progress on the grounds of the society at the east end of Grand Avenue during the last week of August of the year 1906, and the street cars were generally heavily loaded, and ran at frequent intervals over the tracks of the defendant company on East Grand Avenue. The cars and trains ran both east and west over and upon the double tracks above described, the west-bound cars taking the north and the east-bound cars the south tracks. East Walnut, where Kern lived, is south of Grand Avenue, and to take the west-bound cars he went north on Thirteenth to Grand, crossed over the south track to the north one, and to take the car was obliged to go to the northwest corner of the street intersection where the cars were stopped.' East Twelfth Street is approximately three hundred and seventy-five feet west of East Thirteenth, and East Fourteenth is about seven hundred feet east of East Thirteenth. The grade is downward from Twelfth to Thirteenth, and for [624] some distance eastward, from Twelfth to Thirteenth being 1.22 per cent. At or about two o’clock in the afternoon Kern started from his home with the declared purpose of visiting his father, who lived on the west side of the river. He went from his home north on the east side of Thirteenth street, came to Grand avenue, and there it is claimed saw one of defendant’s trains slowly coming from the east, made up of the usual car .and a trailer, close to the intersection of Grand avenue with Thirteenth street. At the time that Kern reached the southeast corner of the intersection of these streets there was an eastbound car at the junction of Twelfth street with Grand, three hundred and seventy-five feet to the westward from Grand and Thirteenth. ’ A west-bound car had passed just, before Kern came to Grand avenue, and it is evident from the entire record that Kern was intending to take the westbound train, which was then nearing the street intersection when he reached the junction of Thirteenth and Grand. He had started from home with the intention of going to the west side of the city, had gone to -the place where he usually took the street cars, and was observed passing from the junction of Thirteenth and Grand at the southeast corner, northward and a little west toward the northwest corner of these street intersections. As he approached the tracks, the west-bound train, instead of passing over the street intersection and stopping at the far side thereof, stopped in the middle of the street intersection for some purpose, and Kern was prevented from getting across to the north side of the north track to take the car, which he was evidently intending to board. Just here we find the most serious dispute in the case. On the one hand, it is contended that there is no proof that Kern intended to take the west-bound car, and no' testimony that he saw this car, which was now very close to the street intersection. It is also contended, on the behalf of the railway company, that the west-bound car was stopped [625] because Kern was either upon the track or close to it and to avoid striking him. We have set forth enough of the record to show that a jury was justified in finding that Kern was intending to take this’ train, and had started across Grand Avenue for' that purpose. Whether or not he saw .the west-bound train which he was intending to take as, he came to the street intersection was a question for a jury, under all the circumstances disclosed, which in part consisted of some testimony that deceased looked in the direction of that train as he left the curb to cross the street. There was also testimony from which a jury might have found that the west-bound train was stopped at an unusual place because it had carried by some passengers who wished to alight at Fourteenth Street east, and desired to' have them get off as soon as possible. As these were jury questions, we must assume, for the purposes of this appeal, that they would have been resolved in favor of plaintiff. . We have, then this west-bound car stopping before crossing the street intersection of Thirteenth Street, and directly in front of deceased as he was pursuing his way toward the northwest corner of the street intersection. Before stopping, the bell was rung for the crossing, and considerable noise attended the act of slowing down. A jury was authorized to find that, immediately upon the stopping of the 'west-bound train in the path which deceased was pursuing, he started 'eastward to go around the latter, and that while passing along the side of the trailer, he was struck by the east-bound car which he had seen at Twelfth Street as he had started to cross Grand Avenue to take the west-bound train. This east-bound car was running at a speed of from fifteen to twenty-five miles an hour, and a jury may have found that it was running at even a greater rate than the highest here named, and that no bell or gong was sounded until just as the car reached and ran over plaintiff’s intestate. [626] The car was going so fast that it ran from one hundred and twenty-five to one hundred and fifty feet after it struck Kern before it was brought to a stop. There is no direct testimony that the motorman on the east-bound car saw deceased until just as it struck him; but, as no signal was given until immediately before the collision, a jury may have concluded that he did not see Kern until just as the car was about to strike him. When Kern was struck, or just immediately before that time, the westbound train was standing, discharging passengers; but the motorman on the east-bound car paid m attention, contrary to the custom of motormen, to the fact that he was approaching a standing train from which passengers were being discharged, and did not slow down or place his car under control as he came to the standing car. All agree that Kern was struck by the rapidly moving eastbound car, and that he was run over, receiving-injuries from which he died on August 31, 1906. 2. Street railways: collision: negligence. Little or nothing is said regarding the sufficiency of the testimony to justify a finding of negligence on the part of the defendant’s employees in the operation of the two cars or trains of which we have been speaking. It is practically conceded that -¿here is enough testimony to support many of tire specifications of negligence; and, if there were nothing more in the case than the unlawful speed of the eastbound car, this, would be sufficient to take the case to a jury on the issue of defendant’s negligence. Passing that point, we have the question of plaintiff’s contributory -negligence, or rather his freedom from such negligence, and certain rulings made by the trial court on the rejection of testimony. [627] 3. Opinion evidence: speed of cars. [626] Before going to the main issue on which the case was determined by the trial court we shall dispose of some of the rulings on testimony. Certain witnesses, nonexpert, it is true, but who showed some qualifications to speak [627] upon the subject, were asked to state how fast the eastxmnd car was going. On defendant’s objection this testimony was excluded. It should have been received. Van Horn v. Railroad, 59 Iowa, 33; Pence v. Railroad, 79 Iowa, 389; Cronk v. Railroad, 123 Iowa, 349; Gregory v. R. R. Co., 126 Iowa, 232. 4. Evidence: res gestae. A witness named Jackley, who was riding on the east-bound car, alighted as soon as it was stopped after it had struck Kern, went to where Kern was lying, there met the motorman of the east-bound car, an¿ immediately had a conversation with him as to how the accident occurred. Questions calling for statements of the motorman in this connection were objected to, and the objections were sustained. They should have been overruled. These declarations were clearly part of the res gestae, and they should have been admitted as a part of the transaction. Alsever v. Railroad, 115 Iowa, 338; Fish v. Railroad, 96 Iowa, 702; Christopherson v. Railroad, 135 Iowa, 409; Hynoven v. Iron Co., 103 Minn. 331 (115 N. W. 167). The only argument made in support of the ruling is that, although erroneous, it was without prejudice, because there is nothing showing what plaintiff expected to prove by the witness. This proposition, while ingenious, is without merit. The testimony was, as we have said, a part of the transaction, and a material part thereof. Plaintiff was entitled to show it all, and was not bound to disclose her purpose in so doing. Being a part of the transaction itself, it was manifestly material, and its rejection was presumptively prejudicial. It was not a collateral matter, the materiality and competency of which did not appear, but a part of the “thing done,” to which plaintiff was entitled. An erroneous ruling under our practice is presumed to be prejudicial, and ordinarily it is for the successful party to show that it was without prejudice. [628] 5. Evidence: description of injuries. A doctor, who examined Kern, and treated him after he was hurt, was asked to describe the nature of his wounds in ordinary language so that a jury could understand it. Objection to this was sustained on the ground that, as the injury and death were admitted by defendant, there was no necessity for going into this matter. There was some doubt about just how and where Kern was struck, and some question as to his exact position when struck. An examination of his wounds and a description thereof would certainly help to solve these problems, and the question should have been answered. There was no testimony in the case, either expert or nonexpert regarding the nature of the wounds indicted upon Kern’s body. Here again prejudice will be presumed. For defendant it is strenuously contended with reference to all of these rulings that, whilst some of them may have been erroneous, they were without prejudice, for in any event the court was right in directing a verdict, because plaintiff had not shown that her intestate was free from negligence contributory to his injury. 6. Same. It is also argued that, even had the rulings been the other way, the answers would have had no bearing upon the question of Kern’s contributory negligence. • We can not agree to this contention. True the testimony as to the speed of the east-bound car may, for the purposes of our present inquiry, be said to have been cumulative, and to have no bearing upon Kern’s conduct just preceding the accident. But testimony as to the statements of the motorman immediately after the accident occurred might have had a very material bearing upon the question of Kern’s conduct before he' was struck by the car. It might have been sufficient in itself to take the case a jury upon an issue presented by the pleadings, wherein defendant is sought to be held liable under the doctrine known as “the last fair chance.” More [629] over this declaration of the motorman might have shown such conduct on the part of Kern as to negative the thought of negligence on his part. Again the testimony as to the nature of Kern’s injuries might have had some bearing upon the question as to how, when and where he was struck. There is a suggestion in the argument for appellee. that Kern was caught between the two cars, or that he was struck by the east-bound car just as he jumped from in front of the west-bound to avoid injury to himself. The case must be reversed because of these erroneous rulings, but as defendant insists that plaintiff’s intestate, under -the showing made, was guilty of contributory negligence as a matter of law, and. that there should be no recovery in any event, we shall give some attention to that matter. 2. Street car ACCIDENT: contributory negligence: evidence. The trial court’s affirmative finding upon this question was bottomed on the thought that Kern did not see the west-bound car until just as he was about to cross the track ahead of it, was not looking out for it, but on the contrary was moving across Grand Avenue without paying any attention to the west-bound car, and that, with no other thought than of the east-bound one, he voluntarily placed himself in a position of danger, either from one car or the other, or from both, and that he can not recover. This conclusion is based upon what we find to be a misconception of .the record. There is as direct testimony as can be produced that defendant saw the west-bound car just after he stepped off the curb on the south side of Grand Avenue, and there is also testimony from which a jury would be justified in inferring that he saw it, and was endeavoring to cross to the northwest corner of the. street intersection in order that he might board the same. TTis declared intent, his conduct in going to this place, and his actions after he arrived there, down to the time the westbound car was stopped, were such as to justify the infer [630] enoe that he saw the car or train, and expected to pass behind the trailer and to board the train at the usual stopping place. Instead of-stopping at the usual place, it was brought to a standstill directly in front of him, and just before it stopped the bell was rung, and other noises inéident to stopping were made. "When this train was stopped Kern turned toward the east to go around behind it, and while in that position was struck by the east-bound car. As the facts upon which the trial., court’s conclusion was based are not in accord with the record, the conclusion itself is unsound. We are constrained to hold, under the record before us, that Kern saw the west-bound car as he came to Grand Avenue, and that a jury may have found that he was crossing the street to get to the usual stopping place, expecting that -the train would pass on ahead of him, and get to its customary place for receiving passengers without any danger to him from either the east or west bound cars or trains. But it is argued by counsel that plaintiff’s intestate voluntarily placed himself in front of the east-bound car without taking ■ any of the usual and ordinary precautions, and without any reasonable excuse, and for this reason that no recovery may rightfully be had. 6. Same:presumption as to speed. It must not be forgotten in this connection that a jury would have been justified in finding that, when deceased started from the curb to go to the northwest corner of the street intersection he saw the east-bound car three hundred and seventy-five feet away , and the west-bound tram just a little east of the street intersection. He was justified in believing that the east-bound car would not come at a greater rate of speed than twelve miles per hour, and to act upon that assumption, so that a jury might have found that, had the two cars or trains been operated in the usual lawful and customary way, plaintiff might have passed to the northwest corner of the street intersection behind the west-bound) [631] train and in. front of the east-bound one 'without any danger to himself. 9. Same: negligence: estoppel. It might also have found that the noise and stoppage of the west-bound train at an unusual place and manner, cutting off Kern’s line of travel, so disconcerted and confused him that he did not think of the eastbound one, and was by defendant’s own con- ** duct placed in such a hazardous and peculiar position as that his failure to get back off the south track or to look again for the east-bound car was excusable. A street car company can not, through its own failure to comply with its rules and customs, made for the benefit of the public, place one who is rightfully upon a street in a hazardous position, and then say that in extricating himself therefrom he did not act with that prudence which one would use under ordinary circumstances. If it created the peril, it can not be heard to say, “Well, you do not act discreetly in avoiding it.” The law takes account of the impulses of humanity when placed in dangerous and hazardous positions, and does not expect thoughtful care from the persons whose lives are thus endangered. 10. Same: contributory negligence. Moreover, it can not be said, as a matter of law, that deceased was bound to look a second time for the east-bound car, even if he was blocked by the west-bound one. He had a right to assume, after having located it but a few moments before, . _ _ ^ that it ‘would not be rushed down upon him at an unusual and dangerous rate of speed. Indeed he had the right to believe it would come no faster than the ordinance permitted. A jury might have found that had the car not been run at an unlawful and unusual rate of speed, Kern could have passed around the west-bound train and out of danger before the east-bound one would have reached him, even after he knew that he had been blocked by the west-bound train. If the case had been submitted to a jury under the record before us, and it had found [632] for plaintiff, we would not have been justified in disturbing it on account of contributory negligence. The principles, we have been discussing and the conclusions reached are so well supported by many of our opinions which have recently been filed that we need do- no- more than refer to them without making quotations from the language used. We call special attention to the following as being closely in point: Perjue v. Gas Co., 131 Iowa, 710; Ward v. Light & Power Co., 132 Iowa, 578; Hart v. Railroad, 109 Iowa, 631; Doherty v. R. R. Co., 137 Iowa, 358. II. Same. We need not cite cases in support of the principle that where one places another in a position of peril, he has no right to expect circumspect conduct. In such circumstances it is for a jury to- say whether or not the other party acted with that thought and prescience that one placed in a dangerous position was likely to adopt, and whether under all the circumstances he was negligent. Indeed the better rule here is that, if a defendant by his own negligent acts throws one off his guard or puts him in peril, the conduct of the person placed in the perilous position will not be regarded as contributory negligence under any circumstances. See Beach on Contributory Negligence, sections 67, 68, and cases cited. We reach the conclusion that for the errors pointed out -the judgment must be, and it is, reversed.