Bradley v. Interurban Railway Co. , 191 Iowa 1351 ( 1921 )

Weaver, J.

i Negmgeitoe • negiigenoaryo£ invited guest. The plaintiff was injured in a collision between an automobile in which he was riding and one of the defendant’s cars, upon a highway crossing in the city of Des Moines. The circumstances under which the collision occurred are not the subject of much controversy. The plaintiff is a resident of Perry, Iowa, and is by occupation a railway conductor upon the Chicago, Milwaukee & St. Paul Railway. On the day in question, he had been called to Des Moines, to attend the funeral of a brother. The funeral was appointed to be held at a chapel in the main part of the city at 3 o’clock P. M. Plaintiff arrived in the city in time to take the noon meal down town. Shortly after noon, he accepted the invitation of his brother-in-law, one Wilson, to ride with him and one or two1 other relatives to the home of the deceased, and thence to the funeral. The auto was owned by Wilson and driven by him. It was well filled with members of the family: all the seats appear to have been occupied. The plaintiff sat on a small or “jump” seat behind the front seat in which were the driver and another. In the rear seat were two ladies. The course of the auto took the party west on New Yoi'k Avenue. The defendant’s railway track crosses this avenue diagonally between Fourth and Sixth Streets; and, as the Wilson party approached from the east and undertook to make this crossing, the defendant’s train or car, moving from the northwest, arrived at what is alleged to have been an excessively high and negligent rate of speed, and came into collision with the auto, throwing it from the track. In that collision, the plaintiff was very seriously injured. The weather, at the time of the accident, was rainy or misty, and the curtains of the car were down. The street at this point is one upon which there is much traffic, and the defendant railway company was at that time operating 56 daily trains over the crossing. That the view of the tracks by persons using the highway from the east was more or less obscured by buildings and other obstructions is the claim of the plaintiff and his witnesses; but this is denied by the appellant. The alleged negligence charged by plaintiff to the defendant is as follows: (1) The'defendant’s car was running too fast, and was not under control; (2) no signal or warning was given of its approach to the crossing; and (3) no gates or flagmen were maintained at the crossing.

The defendant specifically denies each of the several allegations of negligence, and avers that plaintiff himself was guilty of negligence barring his recovery of damages. The trial court submitted the case to the jury on each of the issues presented by the pleadings, and a verdict was returned for the plaintiff in the sum of $10,000. From the judgment entered on such verdict this appeal has been taken.

I. The first and most earnestly argued proposition in support of the appeal is that the plaintiff should be held chargeable with contributory negligence as a matter of law. The argument, stated briefly, follows along this line: First, that, although plaintiff was an invited passenger or guest in a car of which he had neither ownership nor control, yet he was still bound to exercise reasonable care for his own safety; and second, that reasonable care required him, as a matter of law, to observe the crossing to discover if a car was approaching on defendant’s track, and if there was one, it was further his duty, as a matter of law, to give the alarm to the driver, and cause him, if possible, to stop until the danger had passed; and that, failing so to do, he cannot recover.

With the first proposition, that the invited guest or passenger is not absolved from his obligation to use reasonable care for his own safety, there is no room for dispute; but this is as far as the court can keep step with counsel. The leap from the statement of duty of reasonable care for one’s own safety to the conclusion, as a matter of law, that the invited guest is negligent if.he fails to see an impending danger in time to interfere and prevent it, is entirely too far. The question as to what is reasonable care in such an emergency is peculiarly a question for the jury. Within reasonable limits, the invited passenger in an automobile may reasonably and lawfully rely, on the skill and judgment of the driver. He cannot physically interfere with the driver’s control of the car, without peril of disaster. He may, under proper circumstances, sound an alarm, if he sees danger ahead of which the driver seems oblivious; but even then he must still, to some extent, place his reliance upon the driver to avoid it. There is no rule of law which obliges him to forcibly seize the steering wheel and wrest it from the hands of the owner, or to jump from the rapidly moving vehicle to certain injury or death. The appearance of danger of this character in almost evéry case comes in an instant of time; the peril is immediate, imminent; and, if a collision occurs, the destruction is accomplished in a twinkling. The evidence in this case shows that the plaintiff had no acquaintance with the crossing or its surroundings, and did not know of its existence until just as the car reached the track; that he was. riding in the middle of the car, his view to the front being necessarily obscured by the driver and another person sitting in front. He did discover the crossing as'he approached it closely, and almost simultaneously caught sight of defendant’s car, and immediately gave an outcry. The driver appears to have also seen the danger at the same moment, biit was unable to stop the auto. The plaintiff, a practical railroad man, says that defendant’s car swept around the curve and over the crossing at a rate of 35 miles an hour, and in this he is corroborated by others; and, while appellant’s counsel contend flatly that the crossing and its approach were clear, open, and unobstructed to the view of persons approaching from the east, the evidence is ample to support a finding by the jury that at this point defendant’s line swings in a curve to the northwest, and that the view to the westbound traveler on the street is materially obscured by various structures, until he reaches the tracks or enters thereon. Counsel would avoid the effect of this evidence by saying that it is false. This, the court cannot do; and, unless we are to hold that all rules of law which have been supposed to afford some sort of protection to the public in the use of its own streets have been abrogated, we cannot say that a person injured under the circumstances here disclosed is to be charged with contributory negligence, as a matter of law. See Withey v. Fowler Co., 164 Iowa 377; Glanville v. Chicago, R. I. & P. R. Co., 190 Iowa 174; Marnan v. Chicago, R. I. & P. R. Co., 156 Iowa 457; Lundien v. Fort Dodge, D. M. & S. R. Co., 166 Iowa 85; Willfong v. Omaha & St. L. R. Co., 116 Iowa 548; Lawrence v. City of Sioux City, 172 Iowa 320; Willis v. Schertz, 188 Iowa 712; Nesbit v. Town of Garner, 75 Iowa 314; Wagner v. Kloster, 188 Iowa 174.

2 Evidence-exten?eof°yiii-juries II. Exceptions are taken and errors assigned upon tbe admission of testimony by medical and surgical experts wbo bad treated or examined tbe plaintiff, expressing tbe opinion tbat his injuries were permanent; tbat be would never regain tbe normal use of bis injured foot and ankle; would always- walk witb a limp; and other matters of tbe same general nature. It is argued tbat this testimony offends against tbe rule which we have frequently applied, tbat tbe expert witness may not be allowed to express-an opinion in effect determining tbe ultimate question which tbe jury is impaneled to try. Kirby v. Chicago, R. I. & P. R. Co., 173 Iowa 144. But we think tbe rule has no proper application here. Tbe witnesses were not asked, and expressed no opinion, as to whether tbe defendant was negligent in respect to any of tbe matters alleged in tbe pleadings, or whether tbe plaintiff himself was negligent in any respect, or whether his injuries, if any, were caused by any act or omission on tbe part of the defendant. In cases of this character, where damages are sought for personal injuries, it is always admissible to show by expert evidence tbe nature and extent of such injuries, whether permanent or otherwise, and the manner and extent to which his injured or crippled condition, if any, affects- his ability to labor or to make use of his normal physical powers. The testimony of which the appellant complains at this point was, therefore, properly admitted, and the court did not err in overruling the objections made thereto.

8' ?fApromotionSS III. Exception is further taken to plaintiff’s testimony that, in the line of service in which he was employed at the time of his injury, promotion and advancement are obtained by seniority ; and that, by reason of his injury, interrupt-such service, he had lost rank in that respect, and, even if he should become able to return to his accustomed occupation, he could not hope to regain the advantage to which seniority would otherwise have entitled him.

He also testified that, during the time he had been so disabled, the schedule of compensation for railway conductors of his class had “gone up.” No good reason appears for excluding such testimony. The chances of an employee for promotion in the service in which he is engaged, together with proof of the wages he was then receiving, and of his prospects for advancement, had he not been, injured, are universally recognized as proper subjects of inquiry in determining what loss, if any, he had sustained by reason of his disabled condition.

4 railboads • ao-togs^gaies^and watchmen. IV. The plaintiff offered in evidence the defendant’s train sheet, showing the nuinber of trains it was operating over its track at this crossing on the date of the accident. The evident purpose of this offer, as well as of other testi-mony tending to show the amount of traffic on the railway a.nd on the street at this crossing, was for its bearing upon the reasonable necessity, if any, for protecting such crossing by the maintenance of gates or watchmen to prevent accidents like the one now under consideration. For this purpose we hold the testimony material and competent, and the assignment of error thereon cannot be sustained. The question whether such protection was reasonably required at this crossing was one of fact for the jury. The crossing was in a large city over a street of importance, and much used, as is also the defendant’s railway. The angle at which the crossing is made is quite acute, and altogether the situation is such that the question of whether reasonable care, under the circumstances, would require the use of gates or the employment of watchmen, is not one which can be disposed of by the court, as a matter of law. There was no error in submitting the issue to the jury, or in admitting the testimony bearing thereon. See Slaats v. Chicago G. W. R. Co., 110 Iowa 202; Merchants T. & S. Co. v. Chicago, R. I. & P. R. Co., 170 Iowa 378, 385; Pratt v. Chicago, R. I. & P. R. Co., 107 Iowa 287; Annaker v. Chicago, BR. I. & P. R. Co., 81 Iowa 267; 3 Elliott on Railroads (2d Ed.), Section 1157.

Y. The general claim is made that there is no evidence on which the defendant can be properly-found to have been negligent. Such is not our view of tbe record. Tbe evidence is sufficient to carry that question to tbe jury on each of the charges set forth in the petition.

5. New trial: cessiveiiess: ex_ $10,000. Complaint is also made that the verdict of $10,000 is excessive. Plaintiff, when injured, was 46 years old, with a life expectancy of substantially 20 years. His life employment had been in the railway service, and he was then earning $225 per month. His injuries appear to have been of a serious character, incapacitating him from re-entering the work in which he had been engaged and trained. His heel was crushed, necessitating the removal of a large part of the bone in his heel, and destroying the tendon of Achilles. He submitted to three several surgical operations, and suffered much pain. At the time of the trial, he had been disabled for 17 months. It does not appear that, in his crippled condition, there is any gainful occupation in which he can earn a living. He has been put to hospital expenses to the amount of $200, and the further sum of $1,000 for surgical aid. Considering all these things, even if we were to deny his right to compensation for pain and suffering (which, of course, we cannot do), a verdict of $10,000 is surely not so extravagant as to suggest passion or prejudice on part of the jury; and we cannot assume to interfere with their finding.

There is no reversible error in the record, and the judgment of the district court is — Affirmed.

EvaNS, C. J., PrestON and De G-raee, JJ., concur.