Ward v. Marshalltown Light, Power & Railway Co.

McClain, C. J.

1. Street railways: personal contributory negligence. 1. Assignment of error in tbe overruling of defendant’s motion to direct a verdict in its favor is predicated on tbe claim that there is no evidence to show want of contributory negligence on the part of plaintiff. With respect to plaintiff’s freedom from contributory negligence the evidence tended to show that, at tbe curb line, before attempting to cross tbe street, be saw tbe car which caused tbe *580 injury approaching him at the distance of about a block and a half; that without further attention to the car he proceeded to cross the street, and when he reached the defendant’s track, twelve feet from the curb line, he was struck by the car; that the car was running at a speed of thirty miles an hour, whereas, under the provisions of the city ordinance its speed should not have exceeded twelve miles per hour; and that the motorman gave no signal or warning until.his car was so close to plaintiff that he was unable to avoid a collision. It requires no very elaborate mathematical calculation to show that, if plaintiff saw the car approaching a block and a half away when he was at the curb line, he could have crossed the track in safety before it reached him if it had been going at a rate of speed not exceeding that fixed in the ordinance, while, on the other hand, he was likely to be injured, as he was, if the car was going at twice that speed. Now, while it has been well said that one about to cross a street car track should take precaution for his own safety Beem v. Tama & T. Electric R. Co., 104 Iowa, 563 ; Metz v. St. Paul City R. Co., 88 Minn. 48 ( 92 N. W. 502 ), and.should not rely upon nice calculation as to whether or not he can cross before a moving car, McGee v. Consolidated St. R. Co., 102 Mich. 107 ( 60 N. W. 293 , 26 L. R. A. 300, 47 Am. St. Rep. 507 ); T erien v. St. Paul City R. Co., 70 Minn. 532 ( 73 N. W. 412 ); Watson v. Mound City St. R. Co., 133 Mo. 246 ( 34 S. W. 573 ), yet if under the circumstances as they appear to him he is justified in believing that he can cross the track in safety, and he is in fact injured by reason of the improper speed at which the car is operated, we can hardly say that his recovery should be defeated by the fact that if he had looked at the very instant he came into immediate proximity to the track he might have discovered his danger and avoided it. Under such circumstances we think the question of contributory negligence is properly left to the jury. Patterson v. Townsend, 91 Iowa, 725 ; Hart v. Cedar Rapids & M. City R. Co. *581 109 Iowa, 631 . This case differs from that of Ames v. Waterloo & Cedar Falls R. Co., 120 Iowa, 640 , because in that case there was no evidence that the person who was killed by being struck by the car had taken any precaution whatever with reference to his own safety. He was going from a place of safety into a place of danger without exercising any precautions. But here the jury may well have found that plaintiff was taking such precaution as the circumstances required. We are satisfied that the court properly left it to the jury to say whether plaintiff failed to act as a reasonably prudent person should act under the circumstances.

2. New tried: quotient verdict. II. One of the grounds of the motion for new trial, which included several grounds and was sustained generally, was that the jury was guilty of improper conduct in the method of reaching their verdict, in that they arrived at a compromise verdict by each juror placing on a slip of paper the amount which he thought plaintiff ought to recover, and agreeing that the amount resulting by dividing the total of these sums by twelve should constitute the verdict in the case, and that the amount of the verdict was thus determined. The showing is such that the trial court may well have found that this was substantially the method pursued by the jury. That a quotient verdict may properly be set aside has frequently been decided by this court. See Sylvester v. Town of Casey, 110 Iowa, 256, 261 .

3. Same: inadequacy op verdict. Another ground urged for new trial was the inadequacy of the verdict. The court may well have sustained the motion for this reason. Tathwell v. Cedar Rapids, 122 Iowa, 50 . A large discretion is vested in the court in matters of this kind, and we are slow to reverse where a new trial is granted. Mally v. Mally, 114 Iowa, 309 ; Loomis v. Des Moines News Co., 110 Iowa, 515 ; McIntosh v. Locke, 112 Iowa, 252 ; Rodgers v. Farmers’ Nat. Bank, 117 Iowa, 511 .

*582 The rulings of the trial court of which complaint is made are sustained, and the judgment is affirmed.