
    Alice Bloom, Appellant, v. The Sioux City Traction Company, Appellee.
    1 Appeal: Notice: sufficiency. A notice of appeal addressed to the appellee .and his attorneys, service of which is accepted in writing by the clerk of court, when filed in his office is sufficient, even though the notice is not addressed to the clerk.
    2 Street railways: injury to passenger: negligence: evidence. In this action for injury to a passenger leaving a street car, who passed around the rear of the car, stumbled and fell upon a parallel track and was struck by a car coming from the opposite direction, the evidence is reviewed and it is held that the questions of whether the car, in view of the situation, was. being operated at a dangerous rate of speed, and whether had it been operated at a reasonably safe rate of speed the injury would have been averted, were for the jury.
    3 Same: contributory negligence. The evidence is also reviewed and held to present a question for the jury as to plaintiff’s contributory negligence.
    
      4 Evidence: review of ruling: moot question. Where a witness affirmatively shows his incompetency to testify on a subject, a review on appeal of the ruling rejecting his evidence presents only a moot question, and the ruling of the trial court for this reason will be sustained.
    
      Appeal from Woodbury District Court. — Hon. J. IT. Oliver, Judge.
    Thursday, June 16, 1910.
    Action for damages resulted iu a directed verdict for defendant, and judgment thereon. The plaintiff appeals. On rehearing.
    
      Reversed.
    
    
      A. Van Wagenen, for appellant.
    
      
      J. L. Kennedy, for appellee.
   Ladd, J.

I. The notice of appeal was not addressed to the clerk of the district court, though as such officer he accepted service in writing thereon, and the notice was filed with him on the same day. Because of the omission of- the address, the defendant moves that the appeal be dismissed. Had the address of defendant and its attorneys been omitted, the notice must have been treated as insufficient. In re Estate of Anderson, 125 Iowa, 670. Service of notice on tbe adverse party is exacted for tbe obvious purpose of informing bim that an appeal bas been taken in order that be may prepare to meet any objections urged against proceedings in tbe trial court, but tbe clerk is neither- a party, nor interested, and tbe design of notifying bim is not for bis benefit or to enable bim to perform some duty, but merely to advise bim of tbe transfer -of tbe cause to tbe appellate court and to supply bis files witb evidence of tbe notice given. Upon filing it witb tbe clerk as exacted by section 4115 of tbe Code it becomes a part of tbe records in tbe case. Brier v. Ry., 66 Iowa, 602. Hnder a statute similar to that of this state, tbe Supreme Court of Minnesota held it unnecessary.that tbe clerk be addressed in tbe notice (Baberick v. Magner, 9 Minn. 232, Gil. 217), and later, that tbe filing in tbe clerk’s office -of tbe notice of appeal witb acknowledgment of service by tbe attorneys of tbe adverse party indorsed tbereon was a compliance witb tbe statute exacting service of sucb notice on tbe clerk of tbe trial court (State v. Klitzke, 46 Minn. 343, 49 N. W. 54). In McManus v. Swift, 76 Iowa, 576, it seems to bave been thought tbe mere filing insufficient, tbougb acknowledgment of service by a deputy clerk bas been regarded as a compliance witb tbe statute liberally construed in Sanxey v. Iowa City Class Co., 68 Iowa, 542. See Wheeler & Wilson Mfg. Co. v. Sterrett, 94 Iowa, 158; Cullison v. Lindsay, 108 Iowa, 126. Possibly it would be going too far to say the mere filing of the notice in the office of the clerk constitutes service on him though no reason appears for requiring more than the filing, and, this being so, there is no ground for holding that the form of the notice should be other than appropriate to advise the adverse vparty fully and for filing with the papers in the case. No purpose whatever would be served by the insertion of the clerk’s name as addressee, and it would seem out of place in that relation. It. is enough to serve him with notice addressed to the adverse party. The motion to dismiss the appeal is overruled.

II. One of the defendant’s street car lines extends from the business portion of Sioux City to a suburb known as “Morningside.” The plaintiff had taken an outgoing car shortly after deven o’clock in forenoon of April 1, 1908, and when the switch beyond Peter Street was reached it went on a side track behind a car standing thereon which had been crippled, and stopped for another car moving in the opposite direction. The side track was about three hundred feet long, and with the main line ran a little east of a southerly direction. The day was clear, the temperature twenty-three degrees above zero, and' the wind blowing from the northwest at a velocity of forty-six miles an hour. The plaintiff resided a short distance south of the next street, and when the car stopped got off and walked as she testified five or six feet, or, as testified by the conductor, ten or fifteen feet back from the rear end of the car, turned to go across the track, when she stumbled on the second rail and fell, striking the left side of her head on the nearest rail of the other track on which a car was then approaching on its way toward the business center. The fender qf this car struck plaintiff’s forehead throwing her body parallel with track and causing serious injuries. The negligence charged is that the motorman in operating the passing car, instead of slowing it so as to be under perfect control before reaching the rear end of the standing car as it is said ih the exercise of ordinary care he should have done, moved it at a high and dangerous speed, and thereby was guilty of negligence causing the injuries complained of. The trial court in directing a verdict for defendant either held that the evidence was insufficient to carry this issue to the jury, or that the evidence adduced was conclusive as to contributory negligence on the part of plaintiff. In reviewing this ruling, it will be necessary to set' out the evidence somewhat in detail. The conductor of the car from which plaintiff alighted testified:

The lady passed, I should judge, about ten or fifteen feet more or less to the rear of my car. It might have been as little as eight feet. . . . When she had fallen I do not think the car which struck her had got to my vestibule yet. I saw it strike her. The left corner of the fender struck her in the forehead. The two cars were about five or six feet apart when they stopped. When we picked her up, she was about ten or fifteen feet to the rear of my car; she had not been moved from the place where she fell. She was simply turned around in about the same place where she fell. She was not dragged any.....When she fell T was in the northwest corner of the vestibule. After she had fallen, I glanced around, and the coming oar was not quite to the vestibule I was on. In regard to how far the moving car was back or south of the southeast corner of my car, I don’t know whether those vestibules are seven or eight feet long. It was the distance of the vestibule, whatever that was.

On cross-examination, the witness said that plaintiff had informed him that she desired to get off at Davis ¡Street (next south of where the car was stopped); that when, she was about fo leave the car he warned her to “Look out”; that as soon as she stumbled he started to her assistance; that he got a sweeping glance of the coming car when she fell and saw it coming down close to the rear platform; that as soon as she fell he made an effort to get down and pick her up:

That the other car was right there in a second or so. It was so quick, I could not determine the time. The other car got there 'before I could. I am a fairly active man. The ground was rough between the rails. At the time her head struck, I had not had time to get off on the ground. I had to face west to get off. I was in the act of getting off when her head struck. . . . It was so quick it is hard to determine, but I saw her fall and saw her head strike. I started to get off the minute I saw her fall, but, before I could get to the ground, she had struck. As I was getting off, I got a sweeping glance of the other car right at my vestibule. As the other car was coming as I started down I got a glimpse of the other car, just as quick us I could turn my head, and my eyesight followed her as much as possible and it was about the time she struck. When I pulled in on the switch, I saw this car coming about one hundred and fifty feet away. My car had been stopped an appreciable length of time.

On redirect examination, he reiterated his statement that the car was not quite to the vestibule when she fell.

A passenger on the passing car testified that he was standing in the vestibule at the left of the motorman, saw the other car pull in on the side track behind the crippled car, that the motorman on the passing car threw the power off about the length of a car and a half before he reached the switch, and threw it on as he was crossing, and, just before reaching the head of the other car, slowed up by applying the air a little, and then released it, and the car increased in speed, moving downgrade; that, when the vestibule of the car on which he was riding was about the middle of the rear car or past, lie saw plaintiff “plunge bead foremost into sight. I could see tbe upper part of ber body as sbe fell down. Sbe fell below my sight. I was standing back in tbe vestibule and could not see where sbe bit tbe ground. . . . I think tbe car was 'running at a higher rate of speed before than after be put on tbe brake but bad not time to attain a high rate of speed afterwards.”

On cross-examination:

I was standing against tbe front door of tbe car proper. I would be five feet from tbe glass windows in tbe front of tbe vestibule or about that. ... I would not be positive where tbe front end of tbe car was when I first saw tbe woman, but it was about tbe middle or past tbe middle of tbe car sbe got off of. ... I was looking ahead, and not paying much attention to tbe car. . . . When tbe motorman saw ber be reached for tbe lever. I am not sure that be did not have bis band on it. He did not apply tbe air instantly. That would be impossible. He applied it as quick as be could. Sbe fell out of my sight, and, at tbe speed we were going, I should judge sbe struck tbe ground about tbe time tbe fender reached ber.

It was stipulated that tbe cars were forty feet in length, and it was proven that in passing a standing car it was tbe practice of defendant to slow tbe moving car so as to be under perfect control before reaching tbe rear end of tbe standing car, to a speed about such as a man walks. It also appeared that plaintiff in passing behind the car bad this custom in mind; that people living nearby, including plaintiff, frequently left tbe car at this place, though not a crossing, walking therefrom to their respective homes. No fault is found with tbe motorman for not stopping tbe car promptly after be discovered tbe peril of plaintiff. Tbe contention is that because of tbe cars on tbe side track, and tbe custom of tbe company in slowing up and of passengers to alight here,' tbe motorman was operating tbe passing car at a dangerous speed. The evidence was such as to carry this issue to the jury. True, there was no opinion evidence of the rate of speed per hour the car was moving but the testimony of both conductor and passenger plainly shows that it was moving very fast. According to the conductor, plaintiff was ten or fifteen feet back of the rear end of the car when she stumbled, and, though he was an active man and started for her rescue immediately, he had not gotten off when the car struck her, having moved from seventeen to twenty-three feet in the meantime. The passenger saw her falling as the end of the passing car was opposite to or a little past the middle of the standing car or some fifteen or twenty feet from its rear end, so that if plaintiff was ten or fifteen feet beyond she must have been from twenty-five to thirty-five feet ahead when the motorman first could have seen her, and yet, according to the passenger, he had but seen her when she disappeared, and he heard the report of the collision. Moreover, the car was moving down-grade, and though the current of electricity was thrown off about sixty feet before reaching the switch, it was turned on in passing over, and though a little air was applied as the car approached the standing car it was removed at once, so that, when the motorman first observed plaintiff, the power was on, with the car gliding rapidly downgrade. The handling of the car as described but confirms the inference which might be drawn from the fact that the collision occurred almost immediately after plaintiff fell, although the car was some distance" away. It is not for the court to say what rate of speed would be dangerous in passing at this point. As passengers frequently got off there, defendant was required to operate its cars with this in mind, and that it customarily slowed its cars in passing at that place was a circumstance tending to show that this was the proper thing to do. We are of opinion that whether the car, in view of the situation, was being operated at a dangerous speed was for the jury to determine, as was also whether had it been operated at a reasonably safe speed the injury would have been obviated.

Was plaintiff guilty of contributory negligence? This, too, was an issue for the jury. Owing to the crippled car, that on which she was riding must have backed out on the main line before resuming its journey. It was then about halfway between the . streets, and she lived but a short distance beyond the next one. She got off as she and the others had often done and walked to the rear of the car. Had she started across immediately behind the oar there would be strong ground for holding this contributory negligence, 'for opportunity to see would have been cut off, and the transmission of sound much obstructed. Burgess v. Ry. 17 Utah, 406 (53 Pac. 1013); McCarthy v. Ry., 120 Mich. 400 (79 N. W. 631); 2 Thompson Negligence, section 1461. But she went a considerable distance to the rear, and where, ordinarily, she could see and hear before undertaking to cross. According to her testimony she knew the north-bound car was due, had a faint recollection of having seen it, and had in mind the custom of slowing up in passing. If in this situation she had walked across the space of four or five feet between the tracks and in front of the approaching car, doubtless she must have been regarded as having’been negligent. But she had only reached the west edge of the intervening space when she stumbled, and it can not •be assumed conclusively that, but for stumbling, she would have walked heedlessly in front of the moving car without observing it. Stumbling was not necessarily negligent, nor can she be said to have been negligent in falling in a dangerous place. The most that can be said is that, if she was intending to cross the track regardless of the passing car, she was intending to do a negligent act. Such intention, if it existed, was interrupted 'before she reached the zone of danger and the issue as to whether she was guilty of negligence which contributed to her injury, a's said, was for the jury.

Appellant complains of the court’s ruling on a tender of evidence of a general custom with reference to slowing cars when passing. It is enough to say with refereI1Ce ^hat the witness by whom 'it was proposed to prove said custom affirmatively established his incompetency to testify, so that but a moot question was presented, and for this reason the ruling is sustained. It follows from what we have said that the court erred in not submitting the issues to the jury.— Reversed. <  