
    S. H. Stanley, Appellee, v. Cedar Rapids & Marion City Railway Company, Appellant.
    Action for Personal Injury: instruction regarding weight op testimony: discretion op court. Instructions to aid the 1 jury in weighing the evidence are largely discretionary with . the court, and where no abuse of discretion is shown the court’s ruling in refusing an instruction on this subject will not be interfered with.
    Instructions: ordinary care. On the question of contributory 2 negligence, an instruction which required of plaintiff the exercise of more than ordinary care, was properly refused.
    Same: exercise op care. The standard of care required of one 3 injured is always ordinary care and prudence, though the degree of care is governed by the circumstances, and the exercise of proper care is ordinarily a jury question.
    Instructions. Where the court’s instructions cover the material mat-'d ters in those asked, there is no error in denying those requested.
    Same: positive and negative testimony. An instruction that 5 the testimony of a witness who says he heard the car gong ring is entitled to greater weight than the testimony of a witness who says he did not hear the gong, in view of the position of the witnesses, was properly refused.
    Rate of Speed: negligence. The question of whether a high 6 rate of speed constitutes negligence is, ordinarily, for the jury to determine from the surrounding facts and circumstances, and is to be considered with the other circumstances in determining the question of negligence.
    Proximate Cause. An instruction regarding the doctrine of 7 “proximate cause, ” if correctly stated, is not objectionable ' because of a failure to contain the term 11 proximate cause. ’ ’
    Future Pain and Suffering Future pain and suffering are a 8 proper element of damage to be considered, by the jury in a suit for personal injury.
    Direction That Findings Must be Based on The Evidence Un9 It is not required that each instruction direct the jury that its finding must be based on the evidence, and an omission so to do will not render the instruction misleading.
    Motion for new Trial: evidence: ordinary care: contribu10 tory negligence. Evidence considered and held sufficient to support the ruling of the court denying a new trial on the ground that plaintiff failed to negative contributory negligence.
    
      Appeal from, Cedar Rapids Superior Court. — Hon. J. H. Eothrock, Judge.
    Saturday, February 7, 1903.
    Action to recover damages for personal injuries received by plaintiff in a collision with a street car upon a street in the city of Cedar Eapids. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.—
    
      Affirmed.
    
    
      W. E. Steele and Powell, Harman & Powell for appellant.
    
      RieJcel, CroeJcer & Tourtellot for appellee.
   Deemer, J.

While attempting to cross a street at the intersection of Third avenue and Second street west in the city of Cedar Eapids in a buggy in which he was riding, plaintiff was struck by a street car being operated on defendant’s line of road, and received the injuries of which he complains. The grounds of negligence on which the case was submitted to the jury were: (1) Running the car at a high, unreasonable, and dangerous rate of speed, and (2) failure to ring the gong or to give other signals to warn plaintiff of the approach of the car in time to avoid the collision. Oomplaint is made of the court’s refusal to give certain instructions asked, of certain of these given by the court on its own motion, and of the denial of defendant’s motion for a new trial, based on the ground that plaintiff was guilty of contributory negligence. Of these in the order stated.

Instruction one asked by defendant reads as follows:

“(1) The basis of this action is the alleged negligence of the defendant in the operation of one of its cars in some of the particulars set out in plaintiff’s petition, and in your deliberations you will confine yourself to a consideration of the particular acts of negligence set out in plaintiff’s petition. Negligence, in law, is defined as doing that which a person of ordinary prudence would not do under similar circumstances, or failure to do that which a person of ordinary prudence would do under the same or similar circumstances.
“Before the plaintiff can recover in this action, he must show by a preponderance of the testimony two things: First that the defendant was guilty of some act of negligence as defined above, and as set forth in his petition, which caused the injuries complained of; and, second, that he himself did no negligent act which contributed to such injuries.
“By a preponderance of testimony is meant the greater weight or value of the testimony, and not necessarily the greater number of witnesses. In determining the question of preponderance of the testimony, you will be at liberty to consider the opportunity the several witnesses who have testified had to see and understand the things about which they testified, and interest or lack of interest in the event of this suit, and the actions and demeanor of the several witnesses while on the witness stand.” Failure-to give the last paragraph of the request is assigned as error.

In lieu thereof the court instructed, as follows: “(7) You are the judges of the facts. ■ The burden -of the proof is upon the plaintiff to establish the material allegations of his petition by a fair preponderance of the evidence. By a preponderance-of the evidence is meant the greater weight of the evidence, whic i does not necessarily mean the greater number, of witnesses. (8) You are the judges of the credibility of the witnesses. You have the right and it is your duty, -not to consider such testimony as does not appear to you,, as reasonable men, to be worthy of credence.” .¡-

Taken as a whole,, the instruction asked by defendant was erroneous, as applied to the facts of the case. There were four grounds of negligence stated in the petition, but two of which the court found were sustained by sufficient testimony to take them to the jury. Moreover, that part relating to the preponderance of the evidence was not strictly correct. As it reads, it would have no particular significance to a jury, for it merely gives it license to consider certain matters; whereas, if any instruction on the subject was demanded, it should have told them not only that they were at liberty to consider these things, but that it was their duty to do so. But, in any event, in view of the instructions given, there was no error in denying this request.' The proposition involved related simply to matters to be considered in weighing evidence. These would occur to every sensible and reasonable man without any instruction, and courts may well assume that jurors are possessed of enough intelligence to understand these truths without having their attention specifically called to them. The giving of such instruction was largely discretionary with the trial court in any event, and no abuse of that discretion is shown. Tay or v. Railway Co., 76 Iowa, 757; Doran v. Railway Co., 117 Iowa, 442; State v. Viers, 82 Iowa, 399; Upton v. Paxton, 72 Iowa, 300; Bever v. Spangler, 93 Iowa, 610.

II. The second, third, and fourth instructions asked by defendant read as follows: “(2) If you find from the evidence that the plaintiff, before attempting to cross the stfeet railway track at the time of the injury, could, by looking, have seen the car in time to have avoided the accident, but failed to look, or by .listening could have heard the car in time to have avoided the accident, but failed to listen, and you further find from the evidence that the injury was the proximate result of his failure to either look or listen, then he was guilty of negligence contributory to his injury, and he cannot recover in this action. (3) The evidence shows without conflict that the plaintiff has frequently crossed the street railway at the place of the injury prior to. the accident, and it further shows that he was thoroughly familiar with the location of such track, and knew that electric cars were operated at the crossing where the injury happened. Under such circumstances the plaintiff was required to exercise a higher degree of caution and watchfulness than if he had not possessed the knowledge above referred to. If you find that the motorman failed to sound a gong or ring the bell as he approached the place where the accident happened, that fact alone will not entitle plaintiff to recover in this action. The plaintiff, in. approaching the street car track, was required to use the sense of sight as well as that of hearing; and, if he failed to exercise either the sense of sight or hearing, and he was injured in consequence of such failure, then such failure constituted contributory . negligence, and he cannot recover in this action. (4) The motorman operating the car had the right to rely upon the presumption that the plaintiff approaching the railway crossing would exercise the caution of an ordinary prudent person, and that he would not enter upon the track with - out looking and listening to ascertain whether or, not there was a car approaching; and if you find that as plaintiff approached the track with his horse he did not exercise that degree of caution and watchfulness which an ordinary prudent person would under similar circumstances, and the accident occurred as a result of plaintiff’s failure to exercise ordinary care, then your verdict will be for the defendant.” In lieu, thereof the court gave the following: “(6) If you find from the evidence that the plaintiff’s injuries, if any, were directly ,and proximately caused by the negligence, if any, of the defendant, as explained to you in the second and third instructions, then it is your duty to ascertain and determine whether the plaintiff was himself, at and previous to the time of receiving his injuries, if any, exercising such ordinary care as a man of reasonable caution and prudence would have exercised under like circumstances; and, if you find that his failure so to do directly contributed to his injuries, if any, then your verdict should be for the defendant; and upon the issue of the exercise of ordinary •care by the plaintiff the burden of proof is upon him to establish the same to your satisfaction by a fair preponderance of the evidence. ”

The second instruction asked is wrong, in that it ómits ' the feature of ordinary care. It required a verdict for •defendant if plaintiff could, by the highest degree of care, or even, without reference to care, if he could ■ . by any possibility have seen the car m time to have avoided the accident. Ordinary care to discover the car by looking and listening is all that was required of him under the Jaw. Haines v. Railroad Co., 41 Iowa, 231; Moore v. Railroad Co., 102 Iowa, 597. It will hardly foe contended that plaintiff was required to use more than ordinary care to discover the car. He had the right-to rely on the usual and ordinary signals' being given by the defendant’s employes in operating the car; and, while-he was bound to use his senses of sight and hearing, he-was not bound as a matter of law to know all that could have been discovered by the highest degree of prudence- and caution.

The third was erroneous in that it required a higher degree of care and caution on plaintiff’s part than the law exacts. The standard of care on the part of one injured by another is always the same, to wit, ordinary care and prudence. What might be such care under some circumstances might not, it is true, be the-same as under others; but the standard is fixed and certain. Whether or not he used it in the particular case is ordinarily for the jury, and must, of necessity, depend upon circumstances. Orr v. Railway Co., 94 Iowa, 426; Beem v. Light Co., 104 Iowa, 568; Robbins v. Railway Co., 165 Mass. 30 (42 N. E. Rep. 334);. Consolidated Co. v. Scott, 58 N. J. Law 682 (34 Atl. Rep. 1094 55 Am. St. Rep. 620, 33 L. R. A. 122, 58 N. J. Law, 701); Railway Co. v. Block, 55 N. J. Law, 605 (27 Atl. Rep. 1067, 22 L. R. A. 374); Railway Co. v. Snell, 54 Ohio St. 197 (43 N. E. Rep. 207, 32 L. R. A. 276); Shea v. Railway Co., 50 Minn. 395 (52 N.W. Rep. 902). There-was evidence tending to show that plaintiff both looked and listened before attempting to cross defendant’s track.

• The fourth instruction asked related more particularly to the question of the defendant’s negligence and of the-right of the motorman to assume that plaintiff would get out of the way. As applied to the exact questions, submitted to tbe jury, it would have been out of place, if not-erroneous. The matter, in so far as material, was covered by the fifth paragraph of the court’s charge, which reads-as follows; “Neither the defendant, for the operation-of its cars, nor the plaintiff for crossing the street, had the exclusive right to the use of Third avenue at its intersection witb Second street west. Neither had a superior right oyer the other, and each would be obliged, in so far as the undertaking in which each was engaged, and the car or vehicle each was using, would reasonably permit, to take reasonable precaution to avoid collision each with the other.” In view of the two instructions given by the trial court which have already been quoted, we think there was no error in denying any of the requests.

III. The defendant also asked the following: “(6) In considering the testimony of equally credible witnesses touching the question of the ringing of the gong, you are instructed that positive testimony tending to show that the motorman, in charge of the car rang the gong, is entitled to more weight than

the negative testimony tending to show that the witnesses testifying did not hear the gong ring. Therefore if you find the testimony upon this point is of equal weight or value, it will be your duty to find that the gong was ringing.” As applied to the facts shown in the record, there was no error in denying this request. The witnesses who gave the so-called negative evidence, or some of them, were in as good position to hear sounds and signals as those who testified that they heard. In such a case it would have been error to have given the instructions asked. Spaulding v. Railway Co., 98 Iowa, 205; Lee v. Railway Co., 80 Iowa, 174; MacKerall v. Railway Co., 111 Iowa, 549. The evidence adduced by plaintiff was not negative, but positive. Doran v. Railroad Co., 117 Iowa, 442.

IY. The eighth instruction asked by the defendant was to the effect that the speed of the car was immaterial,■■ unless the jury found such rate of speed was so high that proper regard was not had for the safety of persons who, in the exercise of ordinary care, might approach the track for the purpose of going upon or crossing the same. The one given by the court in lieu thereof read: “If you find from the evidence that on or about the 3d day of May, 1899, the defendant, by its servants and employes, was running a car operated by electricity along Second street west approaching Third avenue west, in the city of Cedar Eapids, Iowa, at a high and unreasonable rate of speed, and you farther find that by reason of running said car at a high and unreasonable rate of speed said car collided at or near the intersection of the street and avenue aforesaid with the vehicle in which the plaintiff was then riding, with such force and violence as to cause the plaintiff to sustain personal injury, then your verdict should be for the plaintiff, unless you find that the plaintiff, by his failure to exercise ordinary care and prudence directly contributed to such injury.”

This second instruction is also challenged for the reason that it omits the thought that the high rate of speed must have been the proximate cause of the .injury. The court made no other reference to the rate of speed question; and we have to determine— first, whether or not the instruction asked on this subject should have been given; and, second, whether or not the one given is correct. In the absence of statute or municipal ordinance, no rate of speed is negligent, as a matter of law. Whether the rate in a given instance was so great as to evince negligence on the part of the street railway company is generally a question of fact for the jury. It is manifest that no exact definition can be given of unreasonable and dangerous rate of speed. So much depends on the extent and character of the traffic on the street, and the surrounding facts and circumstances, that no exact rendering of the terms is possible. The rate of speed is to be considered by the jury with other circumstances in determingthe question of negligence. Artz v. Railroad Co., 44 Iowa, 284; Latty v. Railway Co., 38 Iowa, 250.

Coming now to the second question involved in the point under consideration, to wit, failure of the court to instruct that the rate of speed must have been, the proximate cause of the injury. It will be conceded, of course, that this is correct doctrine. That is to say, excessive rate of speed; even if shown, must have been the proximate cause of the injury. But it was not necessary for the court to use the term “proximate cause.” When these words are used, courts generally find it necessary to explain them. They have a technical significance which is not always apparent to laymen, and, if other and more simple terms may be found, itisas well, if not better, to use them. The instruction given says, in effect, that the jury must not only find that the car run at a high and unreasonable rate of speed, but by reason-thereof it collided with the vehicle, and caused the injuries, and that the plaintiff did not by any negligence on his part contribute to the injuries. This is a short way of stating the doctrine of proximate cause. Aside from this, it appears that in the fourth instruction the court specifically called the jury’s attention to the matter, and said that, “If itfound plaintiff’s injuries, if any, were directly and proximately caused by the negligence, if any, of defendant, as explained,” etc. Taken together, there was no error in the instructions relating to this subject.

Y. The sixth instruction given by the trial court reads in this wise: “If you find for the plaintiff, you should allow him such sum, not to exceed the amount claimed by him in his petition, as will reasonably compensate him for the pain and suffering, if any, or loss of time, if any, or both, suffered, or that will'be suffered by him because of his injuries, if any, by him sustained by reason of colliding with the car of the defendant at the intersection of Third avenue west and Second street west on or about the 3d day of May, 1899.” This is challenged for two reasons: First, it is said it does not confine the jury to the evidence bearing on the question there submitted; and, second, it is argued that it leaves the jury to enter the realm of speculation as to future pain and suffering and loss of time. The second point is settled against defendant in Westercamp v. Brooks, 115 Iowa, 159; Fry v. Railway Co., 45 Iowa, 416. The first point seems to us to be hypercritical. Jurors may be assumed to have some sense, and it is not presuming too much, we think, to say that every man who is fit to sit upon a panel knows that he is to make his findings- from the evidence. Instructions must always be based on evidence, and when the jury is told that, if they find certain things, such and such -a result must follow, there is no reason for saying that such an instruction is misleading because the words “from'the evidence” or “as shown by the evidence” are omitted. Blumhardt v. Rohr, 70 Md. 328 (17 Atl. Rep. 266); Pennsylvania Co. v. Connell, 127 Ill. 419 (20 N. E. Rep. 89); Dufour v. Railroad Co., 67 Cal. 324 (7 Pac. Rep. 769); Railway Co. v. Falvey, 104 Ind. 429 (3N. E. Rep. 389, 4 N. E. Rep. 908); City of Indianapolis v. Scott, 72 Ind. 196; Railway Co. v. Ingraham, 77 Ill. 309. There are authorities to the contrary, of course, but we do not feel like following them. The reasoning used in their support is too refined for practical purposes. Each and every juror is sworn to render a true verdict according to the evidence and the instructions given by the court, and we may well assume that he remembers his obligation at all stages of the trial, without being reminded in every instruction, that he must find and believe from the evidence certain things in order to find for one party or the other.

VI. Lastly, it is insisted that defendant’s motion for a new trial should have been sustained for the reason that plaintiff not only failed to negative contributory negligenoe, but affirmatively showed that he was guilty of a want of ordinary care and prudenoe wMch injury. directly contributed to his The evidence on this point is conflicting. The jury was warranted in finding the following facts: Third avenue west is and was at the time of the .accident one of the most traveled and busiest streets in the city, and from First street west to second street it is, and was at that time, lined with business houses on either -side, most of which were two stories in height, and which ■came up flush with the avenue line. In the easterly •corners of the intersection of the avenue with Second street were buildings flush with the avenue line. One of these buildings is called “Watson’s Store.” The avenue was paved with brick. Immediately prior to the time plaintiff was injured he was driving at a slow trot west along Third avenue, and a little to the north of the center of the avenue. There was a heavy rain falling, and a buggy was being driven rapidly in front of him and a wagon behind. Being thoroughly familiar with the location of defendant’s track on Second street, and knowing the custom of defendant to sound the gong on its cars when approaching such crossing at a distance of one hundred to one hundred and fifty feet from the avenue, plaintiff commenced listening for the car at the illey, or about one hundred and fifty feet from the tracks and continued to listen for it as he drove along, but was unable to hear either the sound of the gong or the rumble of the car. When he approached near enough to the car tracks so that fifty or sixty feet of the track to the north of the avenue was exposed to his view, he looked to the north, and, seeing no car coming, he then looked to the south; and, having satisfied himself that no car was coming from that direction, he again looked to the north, and for the first time saw the car, which was then just over the north line of the Third avenue. At this time the front feet of his horse were between the rails, or about over the second or west rail. When the bell was first rung the ear was probably ten or twelve feet from the horse. Discovering his perilous position, and thinking the safest way out of it was to continue ahead, he reached for his whip, and Ampted to get across the track, with the result that his buggy was struck near its center, and he was thrown out and injured. Had the jury found these facts to be true, — as we have no doubt it did, — the idea of contributory negligence is distinctly negatived, and it would have been error for the trial court to have granted a new trial on the ground contended for. See, as sustaining these conclusions, Riley v. St. Railway Co., 80 Minn. 424 (83 N. W. Rep. 376); Harper v. Barnard, 99 Iowa, 159. The instructions given by the trial court were brief, and notas comprehensive, perhaps, as they should have been; but, taken together, they fairly presented the issues to the jury, and we find no error in denying the requests made by the defendant.'

The judgment is aeeirmed.  